
CJIass 
Book 



COPYRIGHT DEPOSIT 



TO ALL WHOM IT MA Y CONCERN— 

I hereby authorize A. E. Wagstaff to collate, edit, and pub- 
lish the biography of my father, Hon. David S. Terry, and 
any favors you cafi extend to him will be highly appreciated 
by me. C H. TERRY. 

Sa7i Francisco, June 2, iSgi. 



PREFACE. 

In presenting this work to the public the publishers have no 
apologies to make for the absence of details that usually enter into 
biography. The limits of an ordinary volume are too meager 
where so many thrilling events of history surround the life of the 
individual subject. His was one of the lives which combined both 
history and tragedy, with a vein of romantic heroism. It has 
been the object of the editor and compiler to present to the reader 
the simple facts, and we have been warned at each step in the 
progress of the work that condensation must be observed, so 
voluminous has been the material presented, both from the public 
records and from private sources. We have been compelled to 
sift this vast amount of material in order to condense the largest 
amount of the truths of history into the smallest space. It is 
probably true that no individual in California has occupied as 
much space in the public prints during a period of twenty years 
as the subject of this sketch. 

We have taken him from his childhood home in Kentucky, 
where his youthful environments had much to do in moulding his 
character, and have followed him carefully in his adventures in the 
war for Texan independence when a mere lad; in his career as a 
common soldier in the war with Mexico; through the stirring inci- 
dents of his Ufe in California, where he won honor, fame and noto- 
riety by virtue of his determined spirit and ,peculiar passions; 
through the turbulent times when the Vigilance Committee of San 
Francisco was in vogue; his eminent services as an associate and 
chief justice of the Supreme Court of the State of California; his 
duel with Hon. David C. Broderick; his devotion to the associa- 

(v) 



PREFACE. 

tions of his youth as a soldier and officer in the Confederate army 
during the Civil War; his quiet professional labors as a lawyer 
during a term of years following the close of the war; his earnest 
and arduous work while a member of the Constitutional Conven- 
tion of 1879; his unfortunate association with plaintiff in the cel- 
ebrated Hill-Sharon divorce case, which eventually led to his 
assassination. 

History and biography are necessarily interwoven in this 
book. The two are arbitrarily combined, as is the result of facts, 
and not an incident is presented that is not verified in the story 
of the times in which he lived, every word of which can be sub- 
stantiated by the living of to-day. As an authentic and unpreju- 
diced work the publishers present it to the critical analysis of the 
public, confident that it will meet the test and be fully appreciated. 



CONTENTS. 



INTRODUCTION 15-28 

CHAPTER L 

California as an Inviting Field — Development of 
Character — The Object of the Biographer — : 
Public Criticism 29-32 

CHAPTER 11. 

His Birth — His Ancestors — Their Distinguished 
Services in the Revolutionary War — His Ma- 
ternal Grandfather, David Smith, and Gen- 
eral Jackson — His Immediate Family. . .33-36 

CHAPTER III. 

Terry's Life in Texas — Exciting Times and Events 
in the Struggle for Independence and a Re- 
public — The Massacres at the Alamo and 
Goliad — Battle of San Jacinto — Independ- 
ence Secured 37-40 

CHAPTER IV. 

Terry Becomes a Student \t Law — His Apparent 
Lack of Industry — Admitted to the ])Ar — 
Development of His Peculiar Characteristics 
for Honesty and Integrity — Services in the 

Mexican War 41-47 

(vH) 



Vlll CONTENTS. 

CHAPTER V. 

Personal Description — General Characteristics 
— Becomes a Member of the Masonic Order 
AT Houston — Religious Sentiments 48-51 

CHAPTER VI. 

Advent into California in 1849 — Battles with 
Indians while Crossing the Plains — Experi- 
ence IN THE Mines — Returns to His Law 
Practice — Defeated for Mayor of Stockton 
— A Ludicrous Affair 52-55 

CHAPTER VH. 

Concludes He Is Not a Politician — Professional 
Success — A Subject for Legendary Stories. . 
• 56-59 

CHAPTER VHL 

Married in Mississippi, to Miss Cornelia Runnels, 
a Woman of Rare Qualities of Mind and 
Heart — Settled in Stockton — His Family 
Relations — Distressing Incidents 60-64 

CHAPTER IX. 

Politics and Political Parties — Broderick's Ad- 
vent INTO California — Broderick and Gwin — 
Terry Becomes a Know-Nothing — Disgusted 

WITH the Broderick and Gwin Methods 

65-70 

CHAPTER X. 

Broderick's Methods and Ambition — Duel with 
Caleb B. Smith — Attempt to Change Estab- 
lished Custom to Secure a Seat in the United 
States Senate 71 -79 



CONTENTS. IX 

CHAPTER XL 

David S. Terry Conspicuous as a Possible Candi- 
date FOR Supreme Judge — His Nomination — 
Election of 1855 — Know-Nothings Victo- 
rious — Terry Elected Associate Justice of 
the Supreme Court 80-92 

CHAPTER Xn. 

The Campaign of 1855 — Terry as an Advocate of 
Reform in Politics — Success of the Know- 
Nothing Ticket 93-97 

CHAPTER XHI. 

Terry Opposed to Vigilance Committee — His Visit 
TO San Francisco in the Interests of Law 
and Order — Exciting Scenes — He Resists 
the Authority of the Vigilantes and Stabs 
Hopkins in a Street Fight 97-104 

CHAPTER XIV. 

Vigilantes in Arms — Surrender of the Barracks 
TO the Vigilantes — Judge Terry a Prisoner 
AT Fort Gunnybags 105-107 

CHAPTER XV. 

Judge Terry's Views as a Defender of the Law — 
His Unyielding Devotion to Constitutional 
Supremacy — Extraordinary Excitement — Cor- 
respondence 108-1 1 2 

CHAPTER XVL 

Extraordinary Efforts to Secure Terry's Release 
— Commander Boutwell and Captain Farra- 
gut — Terry's Appeal to Boutwell — Boutwell 
to F'arragut and the Latter's Patriotic Re- 
ply 1 1 3- II 8 



X CONTENTS. 

CHAPTER XVII. 

Hopkins Reported Dying — Terry Writes a Letter 
TO His Wife — -Judge McAllister Refuses to 
Issue a Writ of Habeas Corpus — Important 
Action of Congress in Terry's Behalf 

II 9- 1 2 2 

CHAPTER XVIII. 

Conference between the Law and Order Forces 
_ and Vigilantes — Gwin and Farragut Appeal 
FOR Terry's Release — Extraordinary' and Ex- 
citing Event between Farwell and Farragut. 
123 

CHAPTER XIX. 

Hopkins Provides for Terry's Release by Get- 
ting Well — Terry Is Tried by the Commit- 
tee — Extraordinary Proceedings in His Case 
— He is Released — Unwise Proceedings by 
His Friends 131-143 

CHAPTER XX. ^ 

His Services on the Supreme Bench — His Asso- 
ciates — Their Characteristics — Evidences of 
His Peculiar Character for Integrity — ■Ex- 
pressions OF the Stockton Bar 137-144 

CHAPTER XXI. 

Terry's Disgust for Politics and Political Meth- 
ods — The Value He Placed upon Justice — In- 
cidents of His Honesty in the Face of the 
Tempter — Strong Southern Views. . . 145-152 



CONTENTS. XI 

CHAPTER XXII. 

Preliminaries to the Great Political Contest of 
1859 — Broderick and Gwin the Champions — 
Both Elected Senators — Broderick Wins the 
Long Term — Bad Faith on the Part of Gwin 
— Broderick and Perley 153-165 

CHAPTER XXIII. 

B Roderick's Charges — G win's Rejoinders — Lat- 
ham's Denials — The Scarlet Letter — Dark 
Forebodings 1 66-1 75 

CHAPTER XXIV. 

Dueling in California — Broderick's Ideas and 
Practice — His' Courage and Determination 
— The Crisis Approaching 176-180 

CHAPTER XXV. 

Tragic Ending of the Campaign — Chief Justice 
Terry's Demand — Broderick's Refusal — Mor- 
tal Combat — Broderick Falls 181-205 

c;hapter XXVI. 

Broderick's Death — The Inquest — The Obsequies 
— Public Sentiment 206-2 1 3 

CHAPTER XXVII. 

Judge Terry Surrenders to the Authorities — 
Gives Bonds — His Trial and Acquittal by a 
Marin County Jury 21 4-2 20 

CHAPTER XXVIIL 

Public Sentiment against Him — He Goes to Vir- 
ginia City on a Mining Expedition — Returns 
in 186? and Meets with Success in Practice. 
221-224 



Xll CONTENTS. 

CHAPTER XXIX. 

Terry at Jackson and Vicksburg in the Confed- 
erate Army — He Goes to Richmond — Com- 
missioned AS A Colonel — Wounded at the 
Battle of Chickamauga — Raises a Texas Reg- 
iment — Promoted to Brigadier General 

225-230 

CHAPTER XXX. 

His Sojourn in Mexico after the Close of the 
War — Warned by French Troops not to 
Cross the Border — Incidents at Tepic — Ex- 
perience with a Wealthy Mexican — Failure 
IN A Cotton-Raising Enterprise — Relations 
with Dr. Gwin — Refusal to Accept a High 
Command under the Emperor Maximilian. . . . 
231-236 

CHAPTER XXXI. 

Returns to California and Settles in Stockton — 
Resumes His Practice with Success — Impor- 
tant Cases in Which He Was Employed — 
Confidence in His Abilities — His Masterly 
Defense of the "Chronicle" against the 
"Federal Brigade" 237-241 

CHAPTER XXXII. 

Elected a Member of the Constitutional Conven- 
tion of 1878-79 — Opposition to His Being 
Sworn in by the Workingmen — He Sees His 
Opportunity — His Speech on Freights and 
Fares 242-253 

CHAPTER XXXIII. 

His Speech Enlists the Sympathies and Support 
OF THE Sand-lot Element — With Them He 



CONTENTS. xm 

Controls the Convention — His Masterly 
Efforts in Behalf of the People — Incident 
OF THE Peachy Challenge 254-263 

CHAPTER XXXIV. 

His Arguments against Stock Speculations — 
Views upon Revenue and Taxation — Sharp 
Discussions between Members on the Taxa- 
tion OF Evidences of Indebtedness — Terry 
Triumphant 264-272 

CHAPTER XXXV. 

His Labors in Framing the Judiciary System — 
Recognized as the Leader of the Convention 
— His Faith in the Adoption of the New 
Constitution — He Retires from the Conven- 
tion Both Honored and Respected — A Recog- 
nized Intellectual Force 273-281 

CHAPTER XXXVL 

Efforts of Capitalists to Nullify the Constitu- 
tion — Defeat of Its Friends at the Polls — 
Terry Defeated as a Candidate for Presi- 
dential Elector 28 1-285 

CHAPTER XXXVn. 

Terry as a Delegate to the San Jose Convention 
IN 1882 — His Support of General Stoneman 
FOR Governor — Stoneman Nominated and 
Elected — Violates His Promise — Terry De- 
serts Him 285-288 

CHAPTER XXXVHL 

The Notorious Stockton Convention of 1884 — 
Field as an Aspirant for the Presidency — 



xiv contents. 

The Anti-Monopoly Sentiment — Judge Terry's 
Estimate of Field's Honesty — Strong Lan- 
guage 289-296- 

CHAPTER XXXIX. 

Judge Terry's Character as Estima.ted by His 
Neighbors — Opposition to the Encroach- 
ments OF Wealth — Views on the Inroads of 

Political Corruption — Views on Slavery 

297-306 

CHAPTER XL. 

Miss Hill and Wm. Sharon — Their Secret Mar- 
riage — Beginning of the Famous Suit — Judge 
Terry as Counsel — The U. S. Circuit Court 
— The Superior Court — Death of Mrs. Terry 
— Terry Marries Mrs. Sharon 307-320 

CHAPTER XLL 

The Final Decision in the Sharon vs. Sharon 
Case — Memorable Scene in Court — Judge 
Terry Loses His Temper — Arrested and Im- 
prisoned FOR Contempt — Appeal for Release 
Denied 320-333 

CHAPTER XLH. 

Judge Terry in Jail — Loses Control of His Tem- 
per and Becomes a Violent Declaimer — His 
Version of the Court ^Scene — Threats of 
Assault in Retaliation — Petition for Release 
— Petition Denied 334-342 

CHAPTER XLHL 

Political Ostracism — Power of the Federal 
Judges — Terry's Great Work to Combat the 



CONTENTS. XV 

Power of Money by Legal Arguments — His 
Celebrated Petition for a Rehearing of the 
Sharon vs. Sharon Case before the Supreme 
Court — A Remarkable Document. . . . 343-396 

CHAPTER XLIV. 

Terry's Estimate of Field— The Hevdenfeldt 
Interview — Heydenfeldt's Denial — Condi- 
tion OF Terry's Mind after Imprisonment — 
Shadowed by Paid Detectives in the Secret 
Service 397-403 

CHAPTER XLV. 

Measures Taken to Protect the Judiciary — The 
Attorney-General's Letter to Marshal 
Franks — Terry to Be Kept in Ignorance — 
Field and Terry Meet at Lathrop — Terry 
Slaps Him in the Face — Field's Bodyguard 
Kills Terry — He Is Arrested and Taken to 
Stockton .404-414 

CHAPTER XLVL 

Terry's Body Taken to Stockton — Excitement 
among the People — False Alarms — A Quiet 
Funeral — Justice Field Charged with Murder 
— His Armor-Bearer — Short Sketch of the 
Life of David Neagle 415-422 

CHAPTER XLVH. 

Political and Social Changes — Estimate of Terry's 
Mental Condition — The True State of His 
Mind and Cause of the Rash Act. . . .423-431 



XVI CONTENTS. 

CHAPTER XLVIII. 

Arrest of Justice Field — Released on Habeas 
Corpus — Action of the Supreme Court — 
Stockton Bar Resolutions — Action of the 
Fresno Bar 432-439 

CHAPTER XLIX. 

Justice Field Interviewed — The Attorney-Gen- 
eral Explains — The Order Denounced as 
Unprecedented — Personal Views— Denounced 
AS A Murder * 440-453 

CHAPTER L. 

David Neagle — Taken under Writ of Habeas 
Corpus to San Francisco — The Questionable 
Transfer Done under Cover of Darkness 
and in Secrecy — Released without a Trial 
— An Ingenious Document 454-513 

CHAPTER LL 

Reflections on Neagle's Discharge — Adverse 
Criticisms on Character of Terry — How He 
Was Estimated by Eastern People. . .514-522 

CHAPTER LH. 
Conclusion 523-526 



LIFE 



OF 



DAVID S.TERRY 



PRESENTING AN AUTHENTIC, IMPARTIAL AND VIVID HISTORY 

OF HIS 

Eventful Life and Tragic Death. 



COMPILED AND EDITED BY A. E. WAGSTAFF. 



CONTINENTAL PUBLISHING COMPANY, 

SAN FRANCISCO, CAL. 

1892 






T 



Pas 



Entered according to Act of Congress, June lo, 1891, by 

J. W. Conger and A. E. Wagstaff, 

In the Office of the Librarian of Congress, Washington, D. C. 



vV" 



INTRODUCTION. 



In introducing this work to the public, the editor 
takes the privilege of entering into and presenting 
some thoughts which have no place in the body of the 
book, or in the biography of the individual. It was 
with some degree of difficulty that certain strong prej- 
udices arising from less recent transactions could be 
dispensed with in the development of a character that 
furnished so many contradictions, and until a full and 
complete research was had of the incidents in the life 
of the man, and the causes which led up to them were 
fully understood and analyzed, deliberate and calm de- 
ductions could not be drawn and impartial justice 
meted out. Men are usually judged solely by the 
reputations they have made in the exercise of their re- 
served activities, which become notorious from the fact 
that they are seldom exercised. It is true that the 
irrepressible temper which made Judge Terry notori- 
ous only actuated him at times when great occasions 
were met and the eyes of the world were upon him. 
The very few incidents in which his evil genius mas- 
tered him have become historical, with the popular 
verdict adverse to his good name. In a term of life 
spanning threescore years and seven he was judged 
by the evil instead of the good which he did. This is 
human nature. 

OS) 



1 6 LIFE OF DAVID S. TERRY. 

The writer does not expect to meet with universal 
approval in many of. his deductions, from the fact that, 
laying aside and ignoring an educated public sentiment, 
he has presented the facts of history as found in the 
public records, and gleaned from the living such inci- 
dents as marked the career of the man In doing so, 
that history which has been recorded by the pen of 
prejudice, and the public sentiment which has obtained 
a large hold upon the people, must necessarily be re- 
versed. There have been incidents in the life of ex- 
Judge David S. Terry of a shocking character, wherein 
he was the violent defender, and wherein no excuse 
can be offered and no charity extended. His evil 
temper was a disease which was implanted in him as 
a natural inheritance, and one which his nobler nature 
was unable to control. Judging from the notoriety 
which attached to his name, it would be supposed by a 
superficial observer that violence was the rule and 
prudence the exception in his life, but when history 
fails to record but three acts of violence in a lona: life, 
there must be some serious mistakes for which the 
public necessarily stand condemned. 

There are forces in nature which are rarely met 
with, and when confronted cannot be fully understood. 
The elements which seem to have combined in form- 
ing the character of David S. Terry, in physical, mental, 
and moral construction, were at war with each other in 
th2 beginning, and each being strong, they could not 
blend into one harmonious whole. His robust frame 
was actuated by a strong mental force, imbued with high 
resolves in the line of honesty and integrity, while his 
moral and spiritual were devoid of superstition and 



INTRODUCTION. 1 7 

were allowed to moulder in the absence of sufficient 
exercise, although capable of being educated to grand 
achievements. 

Cradled in the midst of the most violent turmoils 
and dissensions on the Texas frontier, without the 
counsel of a mother or the example of a father to guide 
and direct, his character was moulded in a tempest, 
and, althouofh his environments were such as to im- 
plant in his youthful mind the most reckless ideas, he 
yielded in no manner to the licentious proceedings of 
his associates. He was never known to engage in any 
of the intemperate habits of those around him. Drink- 
ing and gambling were obnoxious to him, and in the 
midst of a carnival of crime he preserved his honor and 
integrity. Perhaps he was too particular on this point 
and evolved the idea that these virtues were wards of 
the physical powers, and were to be protected and de- 
fended by rash acts of bravery. The manner in which 
he guarded and protected them in after years from 
assault was evidence that he had not been properly 
taught, or rather, that he had not been taught at all. 

His first exhibition of a violent temper, and the most 
unfortunate one in his life, from the fact that it indexed 
his character as a rash man, was one which was the 
result of his high regard for law and order. , In his 
attempt, in the presence of an unlawfully-organized 
revolt against fraud and corruption in San Francisco, 
to impress his views upon the public by his presence 
as the embodiment of the law by virtue of his official 
position as an Associate Justice of the Supreme Court 
of the State of California, he inflicted a wound upon 
an officer of the celebrated Vigilance Committee, and 
became a prisoner in the hands of that organization. 



1 8 LIFE OF DAVID S. TERRY. 

The editor has been extended the privilege of 
making extracts from a political history written and 
published by a literary gentleman who was a contempo- 
rary of the men who form the central figures in this 
book. He was also one of the men who was deeply 
interested in and took part in the politics of the State 
during the exciting times of which he writes, and his 
story is one which has been pronounced correct by 
both factions. His history of the Gwin-Broderick 
fight for place and power and of the Broderick-Terry 
duel has received the sanction of both parties as the 
most fair and truthful account of that unfortunate affair 
that has ever been written. We have trespassed upon 
his liberality quite extensively rather than filch from 
him by expressing his ideas in language of our own. 
It has been found absolutely necessary to give a large 
portion of the lives of Gwin and Broderick in order to 
place the subject of this biography in the position in 
which he should be placed and present his character 
properly before the reader. We have examined other 
stories of this memorable conflict, but found them so 
tinctured with prejudice that the facts were wanting. 

From the fact that David S. Terry never had any 
boyhood days there is no apology necessary for a lack 
of small incidents that so frequently embellish biogra- 
phies. The little incidents that often serve as an in- 
dex to the character of the man are lacking, but he 
furnished enough of the greater ones, tragic in their 
nature and tremendous in their results, to attract the 
attention of and interest the reader. His peculiar 
reticence has deprived the author and the reader of all 
the small embellishments that set the grave picture in 



INTRODUCTION. 1 9 

a gilded frame. In our research for these bright inci- 
dents of youth we have gleaned in a comparatively 
barren field. Almost at the outset we find him laying 
aside his school books and engaging in the strife, a 
soldier at the age of thirteen feeding upon Mexican 
gore, battling for a new republic. The stern realities 
of life crowded upon him and he became a hero in the 
conflict and grew to manhood in the midst of surround- 
ings incident to pioneer civilization in Texas. 

His advent into California following the close of the 
war with Mexico, in which he took apart, brought him 
in contact with new elements and new associates, and 
it is not for the purpose of defrauding the public into 
reading early history that we present in the following 
pages so much of the great political struggle in Cali- 
fornia. It is done in order to properly join the unities 
that led up to more astounding results. It would be 
doing an injustice to David S. Terry not to present 
the characters of both David C. Broderick and Wm. 
M. Gwin. It may not be accepted as a correct con- 
clusion, but it is nevertheless true that they were 
directly responsible for all the ballot-box frauds and 
attending incidents that led to the formation of the 
celebrated Vigilance Committee of 1856. They insti- 
gated all the unlawful acts by their peculiar methods 
and manipulations in the struggle for seats in the United 
States Senate, The questionable characters who op- 
erated in the channels of crime were organized by 
them. No man ever found David S. Terry hobnob- 
bing with criminals or working in the slimy depths of 
political sewers in order to reach official position. 

For two reasons Terry was a terror to those who 



20 LIFE OF DAVID S. TERRY. 

pursued the devious roads to political distinction. He 
had the courao^e of his convictions and was as fearless 
as truth itself. His troubles with the Vigilance Com- 
mittee and his duel with Broderick, coupled with the 
events which followed in making national history, 
served as millstones about his neck. The duel was the 
climax. It was precipitated at a time when extraor- 
dinary events were marching with rapid strides to a 
solution of the slavery question in the "irrepressible 
conflict." On any other occasion and at any other 
period more moderate judgment would have been ex- 
ercised and a better unde: standing would have reversed 
the popular verdict. Among the many who have felt 
the injustice of public criticism was Hon. Joseph Mc- 
Kibben, one of Broderick's seconds, who still lives, 
and in behalf of justice writes: "The harshest kind of 
criticisms have been made on the management of the 
Broderick-Teny duel by the adherents of Mr. Brod- 
erick. Some men grossly misstated facts in order to 
win political capital. To question the scrupulous honor 
that characterized the whole affair is to grossly insult 
the principals and seconds. None of the gentlemen 
engaged would have tolerated for an instant the idea 
of unfairness " As one of the firmest and most con- 
sistent friends of Broderick, this statement from Mr. 
McKibben must be accepted above all others. 

In his research for facts the writer came in contact 
with a staunch Republican — an old pioneer — who was 
one of the prominent politicians of that day, and who 
has occupied high positions of honor and trust in Cali- 
fornia, When told that the object was to present 
nothing but the facts of history and to ignore all stories 



INTRODUCTION. 2 1 

based upon prejudice to fit the sentiments of any social 
or political faction, he said: — 

"When the true history of the life of Judge Terry 
is written, if it ever can be, and it becomes public prop- 
erty, the author will have to seek an asylum in some 
more congenial atmosphere than the one in which 
Terry moved and had his being. He was, because of 
his peculiar disposition, his utter disgust for shams and 
frauds, his contempt for men who became corrupt in 
official positions, his exalted sense of honor and in- 
tegrity, his chivalry and energy in defending right and 
justice, the least understood and appreciated and by 
all odds the best abused man that ever stood erect and 
breathed the air of California. He was an intellectual 
Jove and a physical Atlas, who stood shoulder to 
shoulder and head erect above those among whom he 
moved." 

It developed in our research that Judge Terry was, 
in some manner, interested wiih Wni. M. Gwin in the 
Sonora colonization scheme. His presence in Mexico 
with a large number of his Confederate soldiers at the 
close of the war, and the fact that there were confi- 
dential communications passing between them, leaves 
no doubt that there was some understanding, but Terry 
has left nothing that will confirm the fact. That he 
was there lor some such purpose there can be no 
doubt as one letter written by Gwin on taking leave 
of Mexico would indicate. The story ihat Gwin was 
seeking a ducal coronet and working to subvert the- 
empire of Maximilian exploded the enterprise, and 
Terry remained. He never permitted his lips or his 
pen to betray him, hoping a more mild diplomacy 



2 2 LIFE OF DAVID S. TERRY. 

would obtain whereby he might become a Cincinnatus 
in the development of the rich country. He was an 
acute observer, and next to a judge a splendid diplo- 
mat. He seldom imparted knowledge. All his plans 
and purposes in life were closely guarded in self. He 
never contributed to the world anything of a literary 
character beyond that which his official duties de- 
manded, but his checkered career, in which the exer- 
cise of his peculiar faculties was manifested, has pro- 
vided a fountain from which volumes may be drawn. 
His mistakes stand out boldly from the fact that they 
were committed in astonishing attitudes, and while but 
few in number they were far-reaching in results, over- 
shadowing all his more excellent qualities. 

Judge Terry always impressed those not intimately 
acquainted with him with a sense of imperturbable 
coldness, which impressed the observer with a feeling 
that he was not a generous man. He was perfectly 
unassuming, and there was in him no exhibition of 
pride or ostentation. His principal characteristic was 
integrity, and he was actuated in all his methods by 
that rare quality which we call common sense. There 
was no enthusiasm or poetry in his nature and no elo- 
quence in his speech. He was a plain, blunt man, and 
would seldom apologize for a bluntness that might 
offend a sensitive nature. Without rhetorical embel- 
lishment, his utterances were sententious. In his, 
efforts at the bar he always impressed his hearers 
with that feeling of honesty which was convincing. 
His nature was stoical to a great degree. In one of 
his professional encounters with an attorney, his ad 
versary drew a pistol and threatened to kill him. 



INTRODUCTION. 23 

Terry coolly walked up to him and holding out his 
hand said: " Give me that instrument." The attorney 
handed him the pistol without a word and quietly 
walked away. His utter fearlessness was a command- 
ing power. 

If the reader will be moderate and fair in exercising 
his judgment after reading the facts connected with 
the life of Judge Terry as they are presented in this 
book, and close his ears to the voice of prejudice, which 
has been the foundation-stone of his former adverse 
opinion, he will not fail to arrive at a fair estimate of 
his character. True, he will find something to con- 
demn, for no one can justify his acts of violence in 
some instances where provocations were so trivial. 
His extraordinary breach of respect in the presence of 
the United States Circuit Court was the most flagrant 
exhibition of lack of dignity and respect of self of 
which he was ever guilty, but it was in keeping with 
his chivalric nature. No such act of defiance would 
have occurred in consequence of an adverse decision 
of the court had he been alone. All who knew Judge 
Terry would resent such a charge, and even as it was 
no one outside of long range newspapers unacquainted 
with the facts, has ever made such a charge, but they 
would not deny that he was led into the error by the 
plaintiff, who was his wife, and that it was she for 
whom he disgraced himself and laid the foundation of 
the death which came upon him in such tragic form 
and with such violence at Lathrop. From that day a 
cloud overshadowed him. There was not an admirer 
of his genius as an attorney and his ability and integ- 
rity as a judge but saw and realized that his unfor- 



24 LIFE OF DAVID S. TERRY. 

tunate second marriage robbed him of society and 
brought him to an untimely death. In her defense he 
was sent to prison for contempt, and in his desire for 
vengeance and to inflict humiliation upon the judge 
who overstepped the bounds of custom and precedent 
in inflicting undue punishment, he was assassinated. 
The evidence is complete that the act was premedi- 
tated, and his notoriety as a fearless, brave and danger- 
ous man, shielded the authorities from the measure of 
punishment deserved. 

There seems to be no responsibility attached to the 
killing of Judge Terry. The verdict of the jury was 
not suicide. There was at least a strong suspicion 
based upon evidence that Justice Field's life was in 
danger. This evidence was of a character to cause the 
authorities to provide against an attack. There seems 
to have been no care as to Judge Terry's life. Ordi- 
narily when one person threatens the life of another, 
or to do him bodily injury, the machinery of the law 
is put in operation to bar the execution of the threat. 
The person so threatening is placed under bonds plac- 
ing upon him all the responsibility. In the absence of 
such proceeding and the fact that the attack was made 
and led to the death of Judge Terry, someone has 
guilt upon his soul, and no hired instrument is respon- 
sible. Field is said to have objected to any measures 
being taken to protect him. The Attorney General 
of the United States acknowledges to have made the 
order, and his explanation does not give satisfaction. 
It may not have the exact resemblance of a conspir- 
acy, but the omission to take lawful and necessary 
steps in the face of the evidence to prevent the com- 



INTRODUCTION. 25 

mission of a threatened crime must be submitted to 
the pubhc for their decision as to the criminal. 

The high court of impeachment, known as the pub- 
lic, whose verdict has been sounded through the public 
press, has presented an anomaly in conclusions, show- 
ing the transitions that take place in the evolutions 
from struggling poverty and incorruptible infancy to 
power, wealth and corruption. Not less than a thou- 
sand pens have chronicled the sentiment that "Judge 
Terry was a relic of that stage of civilization from 
which it was assumed that California had emerged. 
That he was a product of the earlier and more violent 
days." There is grim irony in this express'on when 
comparisons are made. He was a product of earlier 
days, and his life testifies to that fact. He was a 
reminiscence of the times when public officers were 
selected from the roll of honorable citizens; when 
United States senators and members of Congress were 
conspicuous for ability and integrity, and when such 
positions were not purchased with gold; when judges 
were chosen for their incorruptibility and exalted sense 
of justice. He had seen fit, in the process of the tran- 
sition from innocence and moral rectitude to that of 
intrigue and moral turpitude in the strides of a "higher 
civilization," to preserve his honor and integrity, and, 
in his fearlessness, to make war upon the encroach- 
ments of that foe to freedom and liberty which was 
usurping justice in high places. 

The San Francisco Examiner, a newspaper that 
aided so strongly in fanning the flame of revenge in 
Judge Terry's breast while he was in the Alameda 
county jail, made the following assertion after his death: 



26 LIFE ©F DAVID S. TERRY. 

" He was one who, long before this, if even-handed 
justice had been meted out, would have suffered on 
the gallows a fit punishment for his acts." 

There is recorded an instance in the history of the 
world in which an individual was put to death because 
he made bold to hold up the corruptions of those high 
in authority to public scorn and contempt. Justice 
Field testifies that Judge Terry had indulged in ex- 
pressed doubts as to the purity of judges, juries and 
officials generally. It was unpopular to do so, but 
Judge Terry was addressing himself to a crowded 
house. In this he was the -tribune of the people who 
were more timorous than he. His judicial mind could 
comprehend more clearly and his high position at- 
tracted more readily. The people believed as he did, 
but their voices were not heard. Men do not relish 
disclosures of their corrupt practices, but they are too 
cowardly to battle against the truth. He was so pan- 
oplied that he could afford to criticise, as he did not 
live in a glass house. The "higher civilization" had 
made it very unpopular to tell the truth if it touched 
the besmirched robes of official majesty. An honest 
citizen was more respected in his eyes than one in 
power upon whom suspicion rested. 

If this is the stride civilization has made since the 
" more violent days" of which Judge Terry was a relic, 
would it not be well to close the public schools, raze 
the churches to the ground, demolish the family altars, 
repeal all wholesome laws, open the dens of vice and 
crime, license political pawnshops, put candidates for 
office on the auction block, put the itching palms of 
judges behind their backs, enslave the poor and needy 



INTRODUCTION. 27 

and give the devil full sway? It requires political and 
social convulsions to change established conditions. 
These eruptions are called "advancing civilization." 
Plethora, whether in population or wealth, leads to 
corruption, and these are the conditions that confront 
humanity in all stages of the world's progress. 

This "relic of an extinct civilization" has been re- 
moved, and the gladsome echoes have been sounded 
from shore to shore. The stern and relentless advo- 
cate of the people's cause has been sent to his grave 
unattended by the pomp and parade of dignitaries who 
camp on the trail of popularity and lead the van of a 
"higher civilization." The name of David S. Terry,- 
with his "bristles and claws," will not disturb the re- 
pose of his enemies longer, but in the search for dark 
spots of corruption and dishonor to his name the lens 
of scrutiny will never disclose the faintest trace. The 
Supreme Court of the State of California, sitting on 
the pedestal of a " higher civilization," bowed to the 
gods that have been set up by the political pawnshops 
in subjugation when it refused to recognize the services 
of the man who gave it dignity and preserved its in- 
tegrity in the days when the " remote civilization " was 
wrestling with the flood of the new which finally over- 
whelmed it. That was a grandly ignoble act. 

The time may never come when the truth will arise 
superior to the flood of condemnation that has clouded 
the true character of Judge Terry, but in the field of 
research the writer of this biography has failed to find 
one fact to establish the reputation that has attached 
to the name of the subject, and which has overshad- 
owed him. He was a man whose impulses were for 



28 LIFE OF DAVID S. TERRY. 

right and justice, and his aims in hfe were of the most 
honorable. The evidences of nobihty and grandeur 
have accumulated, and what was at the beginning a 
dark and disagreeable character, where condemnation 
must necessarily be indulged in as gauged by popular 
clamor and distorted stories, has developed into one 
of extraordinary sublimity, marred only at isolated 
stages by the exercise of a quality as astonishing in its 
development as his nobler attributes were surprisingly 
grand. We are astonished at the record as it has 
stood for almost forty years, for we find it based upon 
falsehood and fashioned by his enemies to suit the sen- 
timents that were popular and prevailed at that time. 

This book was not written to conform to public 
opinion but in the interest of justice as presented by 
the facts. Whatever criticisms may bs called forth by 
the views here taken must be gauged by the facts 
presented. No cynic need ply his avocation, for the 
records will put his egotism to shame. 

The Editor. 



CHAPTER I. 

California as an Inviting Field — Development of 
Character — The Object of the Biographer — 
Public Criticism. 

During the few years following the conquest of 
California and the excitement produced by the dis- 
covery of gold, the horde of wealth seekers who came 
to the territory was marvelous in numbers and devel- 
opment in the various fields of industry was rapid. 
There is no incentive that has such a magnetic power 
as gold, and there is no nation under the sun, no mat- 
ter what the habits and traditions, whose people are 
not impelled by a desire for wealth to such an extent 
that they will forsake their established avocations and 
associations to secure that precious commodity which, 
when once obtained, commands respect and has become 
such a power in the world. The Pacific Coast was the 
scene of intense excitement and activity. The influx of 
gold seekers was general from all quarters of the globe. 
Each one came inspired with great expectations, and 
all were infused with the hope that they would better 
their conditions. The young and the old, men of all 
trades and professions (except the gambler and thiei"), 
came to dig for gold, leaving their legitimate affairs 
behind for the time to be resumed when fortune favored 
them with their quota of her fabulous wealth. It was 
an enchantment which allured with the brightest antic- 

(29) 



30 TIFE OF DAVID S. TERRY. 

ipations, and they were not disenchanted until they 
realized, as many did by sad experience, that to succeed 
required labor, patience and endurance ; that even in 
the presence of vast treasures there were disappoint- 
ments. 

As population increased and society began to assume 
definite shape, business and professional men were seen 
drifting into their legitimate avocations. In this adjust- 
ing process necessary to establish communities for self- 
preservation and protection, but few professional men 
were found handling the miner's implements. It be- 
came a field for speculation and trade. As the prospects 
unfolded the future of the new State became bright. 

None but men of energy and enterprise ever venture 
upon new fields so distant and isolated from home and 
established social centers. It matters not what their 
past histories may have been or their former conditions, 
ambition led them to the wilds of the modern Ophir, 
and they came nerved with a hope of reward. Even 
the criminal, fleeing from himself and from the law, 
found an asylum in the midst of this heterogeneous 
mass of humanity where people were so intensely 
absorbed in the one prevailing thought of wealth. 
While some were not over-honorable in their methods 
those who proved themselves worthy became the ob- 
jects of more than ordinary interest, particularly poli- 
ticians, without whom the world would become a tran- 
quil paradise — a haven of perpetual bliss. 

Among those who came to California in early times, 
endowed with intellectual ability and physical energy, 
was the subject of this biography. He had inherited 
a disposition which isolated him from that vast multi- 



EARLY CALIFORNIA. 3 1 

tude who make up the ordinary array of genial com- 
panions, but he was arbitrarily imbued with an exalted 
sense of honesty and integrity. His tall stature and 
broad shoulders coupled with his extraordinary will 
power, plainly indicated that he was a splendid type of 
the man who roughly elbows his way through life, and 
his chivalric nature was a correct index to the fact that 
he was destined to make history. It was not to be the 
history of the great philanthropist whose energies were 
engaged in perfecting some grand scheme for the 
amelioration of mankind, nor that of the poet whose 
divine pathos in the harmony of verse and rhythm has 
touched the chords of sympathy and caused the hearts 
of all mankind to vibrate with feelings of universal 
brotherhood. Such individuals may have furnished 
material for the biographer without having had conten- 
tion with the elements that combat the spirit of repose, 
but extraordinary characters are only developed in the 
fierce crucible of experience with malignant forces that 
confront them in the pursuit of the goal of a worthy 
ambition, striving to subdue the inherent passions that 
actuate self Without the dark shadowing no picture 
can be painted, and the darker the shadows the more 
intensely striking the portrait. The most obstinate 
foe to man is the evil spirit he possesses, and without 
the utmost exertion and the most severe discipline it 
cannot be overcome. 

Biographers usually betray public confidence by 
drifting into the rut of fulsome eulogists, no matter 
what the records present or estimate the public may 
have placed upon the character of the individual they 
assay to place upon the pages of history. In present- 
3 



32 LIFE OF DAVID S. TERRY. 

ing the character of David S. Terry the writer must 
necessarily confine himself to the facts. They will 
furnish the best eulogy. Without conflicts with the 
world no man can have a place in history. It is the 
genius that overcomes obstacles at war with nobility 
that makes the hero. The standard set up may not be 
acceptable, but nature makes no mistakes in her im- 
print. Probably no single individual in California has 
commanded a greater share of public notoriety and 
attracted a larger amount of attention than the subject 
of this book. In a large degree that which has been 
presented to the public only serves to show the dark 
shadows of an eventful life — such shadows as follow in 
the trend of errors and mistakes, which are incident to 
all men, but which become the more obnoxious because 
of the eminence and peculiar characteristics of the 
man among men. It is only history repeated. It 
shocks the moral sensibilities to hear a preacher of the 
gospel resort to profanity, and when he yields to the 
lusts of the flesh he becomes more noted and con- 
demned for a single error than credit for all the words 
of eloquence drawn from inspiration that he may be 
eminently qualified to utter in the sacred desk. 

The severe criticisms that have been passed upon 
the acts of Judge Terry have warne'd the writer to be 
very careful in preparing and presenting the various 
incidents that have transpired in making him conspicu- 
ous as a subject of biography. It has been intimated 
that if anything meritorious should be discovered in 
the research, policy would suggest that it be lightly 
touched or entirely suppressed. As that sort of policy 
has been exercised absolutely heretofore, it is not a 



EARLY CALIFORNIA. 33 

quality which the writer of this knows how to handle 
in presenting the life and character of a man of so 
much ability and prominence. The sole object will be 
to follow the injunction of Shakespeare when he makes 
Othello say : " Speak of me as I am ; present an un- 
varnished tale ; nothing extenuate, nor set down aught 
in malice," and in doing so only those who have nursed 
and cultivated a deep-seated prejudice will condemn. 
Before rendering a verdict let each one read the story. 
It has never before been presented to the public in 
detail, and owing to the peculiar reticence of the man 
there may be chapters of the brighter side that sleep, 
and will sleep forever in oblivion. Those of the darker 
side have not been allowed to slumber. 



CHAPTER II. 

His Birth — His Ancestors — Their Distinguished 
Services in the Revolutionary War — His Ma- 
ternal Grandfather, David Smith, and Gen- 
eral Jackson — His Immediate Family. 

David Smith Terry was born in Christian (now 
Todd) County, Kentucky, on the 8th day of March, 
1823. His grandfather, Nathaniel Terry, was a native 
of north Ireland, and came to this country prior to the 
struggle for independence, settling in Virginia. He 
took an active part in behalf of the colonies and was a 
Colonel commanding a regiment, taking part in all the 
great battles of the Revolution. He was a prisoner in 
the hands of the English, and was confined for many 
months in the Charleston prison. He was particularly 
conspicuous at Yorktown, and was present at the sur- 
render of Cornwallis. Of his immediate family there 
is no record beyond the fact that he left a son, named 
Clinton Terry, who was the father of David S. 

His maternal grandfather was David Smith, for 
whom he was named, and who seems to have been a 
man of remarkable force of character. Of him much 
might be written. He was a Scotchman, and when a 
young man he followed the fortunes of Charles Ed- 
ward, the Pretender, who met his fate at the battle of 
CuUoden. When the fortunes of Charles went down 
in defeat and his forces were threatened with annihila- 
(34) 



LIFE IN TEXAS. 35 

tlon, young Smith escaped, boarded a vessel in disguise, 
and came to America, settling in Virginia in 1746. He 
united with the colonial forces that revolted against the 
tyranny of England and fought until the close of the 
Revolution with determined courage and bravery, and 
retired as a Colonel at the close of the war. He left 
a son, David Smith, who was also distinguished for the 
services he rendered the government in the War of 
18 1 2. He was an officer under General Jackson at 
New Orleans and during the Creek War in Florida, 
and came within the circle of Jackson's confidential 
friends and counselors, being rewarded with an official 
position of honor and trust. He was a man of large 
proportions, and resembled David S. Terry, both in 
physical stature and in his features. * He had two sis- 
ters, one of whom married Clinton Terry, the father 
of David S., and the other Hiram Runnels, a promi- 
nent citizen of Mississippi, and once Governor of that 
State. 

After his marriage, Clinton Terrv made his home in 
Kentucky and was extensively engaged in cotton 
planting. Here his two oldest sons were born — Ben- 
jamin Franklin and David Smith. He was a man of 
average fortune, as fortunes were counted in those days, 
and operated upon an extensive scale ; but a more 
favorable opportunity for raising cotton was presented 
farther south, and in 1824 he moved to Hinds County, 
Mississippi, where he purchased a large plantation, and 
cultivated successfully for ten years, during which time 
two other sons were born, named respectively Aurelius 
J, and Clinton. Here he contracted habits which led to 
a separation from his wife in 1835, and Mrs. Terry, who 



36 LIFE OF DAVID S, TERRV. 

was a woman of rare qualities of mind and great forti- 
tude, took the children and moved to Texas the same 
year in hopes of retrieving the losses in fortune sus- 
tained through the mismanagement of business affairs. 
Mr. Terry returned to Kentucky, and after his wife's 
death, married again. He died in 1876, leaving a large 
family, the fruits of his second marriage. 

Benjamin Franklin Terry, the oldest son, was a 
brave and impetuous officer in the Confederate army, 
and was killed at the head of his regiment, of which 
he was Colonel, while leading a charge at the battle of 
Green River, near Bowling Green, Kentucky. Clin- 
ton, the youngest of the four brothers, was an eminent 
attorney, and was intrusted with large interests during 
the war. While *on his way to Richmond on business 
in the winter of 1862, he joined General Wharton, 
who commanded a division of cavalry in the Confed- 
erate army, a few days before the battle of Shiloh. 
General Wharton permitted him to accompany him as 
he expressed a desire to witness a battle, which was 
then imminent. He was killed during the first day's 
engagement. 



CHAPTER III. 

Terry's Life IN Texas — Exciting Times and Events 
IN THE Struggle for Independence and a Re- 
public—The Massacres at the Alamo and 
Goliad — Battle of San Jacinto — Independ- 
ence Secured. 

Mrs. Terry, with her four sons, settled upon a large 
plantation on Oyster Creek, twenty-five miles west of 
Houston, and began cotton raising on a large scale. 
As her oldest son was only fifteen years of age, she 
took the management of affairs in her own hands, and 
performed other duties of a domestic nature which she 
found very arduous. Her children had received only 
such an education as had been provided by the public 
schools of Mississippi, which was very limited. The 
burdens she had assumed were too great, and the fol- 
lowing year (1836) she died, leaving the care and 
responsibilities of the large plantation to Frank, as he 
was called, and David. They were both large of their 
age, and were endowed with more than ordinary abili- 
ties and courage. The worst feature that confronted 
them was a social one. At that time the territory of 
Texas was in dispute. A conflict was going on be- 
tween the people who had flocked in from the United 
States, who called themselves Texans, and the Mexi- 
cans for possession. During the influx, a horde of 
criminals had sought refuge from justice in the dis- 

(37) 



38 LIFE OF DAVID S. TERRY. 

puted territory, and they were more to be feared than 
the natural enemy. A desperate colony of these 
criminals had settled near Austin and formed them- 
selves into a band of "Regulators" to aid the guer- 
rillas in obstructing immigration from the United 
States. Their operations were very extensive, and 
when united with the Mexicans as allies they became 
inhuman and fiendish. Notwithstanding this, large 
numbers of the better class of people from the South- 
ern and Western States settled in the eastern and 
northern portion of the country, adding security to 
both lives and property. The people of Texas had 
organized a provisional government, with General 
James Austin as President. The military forces were 
commanded by General Sam Houston, Colonel W. 
B. Travis and Colonel Fannin — Travis in the south- 
west, Houston, as the commanding general under- 
Austin, in the central portion of the territory, and 
Colonel Fannin in the east. 

In February, 1836, the forces under Colonel Travis, 
one hundred and forty in number, among whom were 
Colonel Davy Crockett and Colonel James Bowie, 
occupied the Alamo on the San Antonio River, and 
fortified it, expecting an attack from the Mexicans 
under General Almonte. Santa Ana, who had as- 
sumed the dictatorship in Mexico, had become inhu- 
manly reckless, and proposed to wage a war of ex- 
termination. Almonte appeared on the 20th day of 
February with two thousand Mexican regulars and 
demanded the surrender of the fort, which was re- 
fused. The bombardment commenced, and deter- 
mined charges were made, all of which were success- 



LIFE IN TEXAS. 39 

fully resisted by the Texans, and the siege was kept 
up for two weeks. The Texans had but two small 
cannon, were almost naked for clothing and famishing 
for food. Every effort was made to gecure assistance. 
Thirty-two recruits, without arms and without food, 
had succeeded in gaining admittance. Their ammu- 
nition gave out, and they determined to cut their way 
through the Mexican lines and escape. This bold ac- 
tion was attempted on the 6th of March, but they were 
overpowered, and those not killed in the attempt 
were afterwards shot by order of Santa Ana, their 
bodies mutilated, piled up and burned. It is unneces- 
sary to repeat the history of this inhuman butchery. 
"The massacre at the Alamo" became an inspiring 
watchword for the Texan forces forever after. A few 
days later, March 27, Colonel Fannin, who had 
been ordered by Houston to join him, while on the 
march near Goliad with six hundred men, was con- 
fronted by General Urrea with five thousand Mexi- 
cans. After a two days' engagement, Fannin capitu- 
lated under promise of humane treatment, with the 
understanding that his men should be sent to the 
United States, but Santa Ana ordered three hundred 
and fifty-seven of the prisoners shot in cold blood. 

It required time in those days for the news to be 
communicated to the sparsely-settled portions of the 
territory, but when the people were made aware of it, 
they were imbued with a spirit of revenge. At this 
time David S. Terry was a lad only thirteen years old, 
but he was large, strong and brave. He immediately 
left his brother, his books and the plantation, and 
joined the Texan forces who were marshaling under 



40 LIFE OF DAVID S. TERRY. 

Houston's banner and joined him at Gonzales, where 
he was encamped with only three hundred men. Santa 
Ana with four thousand men had been marching through 
the territory, burning towns and devastating the coun- 
try, and, being flushed with success, was in search of 
Houston and" his men. Knowing all this, Houston 
concluded to fall back, hoping to divide and scatter the 
Mexica4i forces, which proved successful to the extent 
that, when arriving at San Jacinto, Santa Ana had only 
si.^rteen hundred men. By this time Houston had re- 
ceived re-inforcements until his forces now numbered 
six hundred, and he prepared to attack the Mexicans 
then and there. Here the most memorable battle that 
ever took place on the American continent was fought, 
and the grandest victory achieved, considering the 
numerical strength of the combatants and the results. 
Of the Mexican army six hundred and thirty were 
killed, two hundred and eight wounded, and seven 
hundred and thirty taken prisoner. Of the Texans 
only eight were killed and twenty wounded. The 
Texans' battle cry was, "Remember the Alamo — 
remember Goliad!" and this inspiring slogan was 
worth a thousand men. They fought with their guns 
as clubs and their bowie knives, as they had no bayo- 
nets. Here young Terry was conspicuous for his 
bravery. A Mexican officer struck him on the head 
with a saber, inflicting a scalp wound, and was re- 
warded with a bowie knife which pierced his heart. 
Santa Ana was taken prisoner, and was compelled to 
sign a treaty granting independence to Texas. 



CHAPTER IV. 

Terry Becomes a Student at Law — His Apparent 
Lack of Industry — Admitted to the Bar — 
Development of his Peculiar Characteristics 
for Honesty and Integrity — Services in the 
Mexican War. 

The war being ended and peace restored, young 
Terry returned home and remained quietly until 1841, 
when he entered the law office of Colonel Hadley, in 
Houston. Hadley was his uncle, and took considera- 
ble interest in his pupil. Terry was an industrious 
student. From childhood he had exhibited a pecul- 
iarly taciturn disposition, seldom engaging in any of 
the amusements common among young men of his day. 
When questions of importance were introduced as 
subjects of conversation or discussion, and particularly 
where legal points were involved, he was an agreeable 
and interesting companion. His perceptor, Colonel 
Hadley, often remarked that Dave Terry seldom stud- 
ied, but gained his knowlege by absorption, like a 
sponge. He was not bright, but deep, and possessed 
a remarkable memory. He was not quarrelsome, never 
offered an insult to anyone, but was prompt to resent 
one when offered. He never indulged in any of the 
vices prevalent at that day, being exceedingly abste- 
mious, and seldom wasting his time at card playing, 

(41) 



42 LIFE OF DAVID S. TERRY. 

which was the social recreation indulged in by men 
both young and old. He made such rapid progress 
that he was admitted to practice within two years after 
entering upon his studies. In relating the incident of 
his examination upon being adinitted to practice he 
gave a version, the truth of which is vouched for by 
others, and is very amusing. Three attorneys were 
appointed to make the usual examination, and at the 
appointed time they took their seats around a table. 
The oldest member of the committee adjusted his 
spectacles on his forehead, and, with a solemn and 
serious expression on his countenance, intending to im- 
press Terry with the most grave magnitude of the 
ordeal through which he was about to pass, said: — 

"Young man, do you know the price of a dish of 
oysters?" 

Terry, with that coolness which was one of his prom- 
inent characteristics, replied that he did. 

"In order, therefore, to test the correctness of your 
judgment and legal acumen," said the spokesman, 
" I move we adjourn." 

The motion was carried, and the committee repaired 
to a restaurant and partook of refreshments at Terry's 
expense. He was accordingly granted a diploma set- 
ting forth his legal abilities, high moral character and 
patriotic devotion to country. 

After being admitted to the bar he, in connection 
with Colonel Hadley, opened an office in Galveston. 
One of the first cases brought to him was of such a 
character that he positively refused to have anything 
to do with it, and his action in that instance was an 
index to his high regard for integrity, It was one in 



LIFE IN TEXAS. 43 

which a rich planter of Louisiana attempted by a legal 
quibble to dispossess a widow of two thousand acres 
of land. He was offered a large fee, but he was in 
possession of all the facts, and knew the widow had 
purchased the property in good faith, and although 
there was a cloud on the title and the case was one 
which would require but little effort to win, he knew 
it was wrong. Having been made acquainted with 
the fact by Mr. Benjamin, the planter, he would not 
take issue on the other side, but he engaged another 
attorney to take the case and secure a clear title to the 
widow. 

Galveston at this time was the principal port of entry 
for the Texas republic. Here he became acquainted 
with Major Rhodes, then United States Consul. He 
was the father of William Rhodes, whose brilliant 
career as a writer over the signature of "Caxton" in 
California, attracted attention and won him notoriety. 
Mrs. Mary Rhodes, wife of the Consul, was one of 
the most brilliant, entertaining and fascinating women 
of that section of the country. She was a great friend 
of Judge Terry until his second marriage. She is now 
living in San Francisco, and still retains her wonder- 
ful fund of intelligence and brilliant conversational 
powers, although eighty-three years of age. Much 
might be said of this woman, as she was intensely 
Southern in her opinions, and she employed her en- 
ergies during the Civil War aiding the insurgents. Her 
son was a lieutenant in a North Carolina regiment and 
was killed at the battle of Gettysburg. Among the 
souvenirs which she prizes highly is a golden star 
worn by General R. E. Lee in his defense of Virginia. 



44 LIFE OF DAVID S. TERRY. 

During the political campaign of 1844, when the 
question of the annexation of Texas was the absorb- 
ing theme, there were some who doubted the propriety 
of the move, and among others Consul Rhodes. In 
a conversation with him on the subject Judge Terry 
said: — 

"I am not sure but that annexation may injure the 
prosperity of Texas, but in this I may be mistaken. 
The commercial prospects are not very bright for an 
independent republic. If annexed, of course the United 
States will take possession of the harbors, and the 
business will be done through the central government 
at Washington. That will injure our prestige, but we 
will have the power and strength of that government 
behind us, and Mexico will not again attempt a war of 
subjugation. Considering the feeble condition of our 
finances, my private opinion is that annexation is pref- 
erable in the main." 

Terry was an old-line Whig. He loved "Old Hick- 
ory" for his dash and independence, and in return for 
the friendship he had for his grandfather, David Smith, 
and the confidence he had reposed in him. While he 
did not admire James K. Polk so much, he was op- 
posed to Henry Clay on account of his compromising 
spirit. He supported the administration of Polk more 
as a political necessity than for any confidence he had 
in the man. Houston was an absolute annexationist 
and an honest man, and for this Terry liked him. He' 
could march under the banner of the hero of San 
Jacinto and become enthusiastic. He would have been 
proud to remain a citizen of an independent republic 
which he had fought to establish, but the United States 
was a much grander republic. 



LIFE IN TEXAS. 45 

While in Galveston attending court on one occasion 
an episode occurred, which is noted here as an index 
to a prominent phase of his character. He was board- 
ing at a house kept by a young widow, and an itinerant 
phrenologist was lecturing at one of the public halls. 
One evening Terry accompanied his landlady to the 
entertainment. The lecturer's name was Crane, with 
the prefix of professor. After the professor had fin- 
ished his lecture and had examined the heads of several 
persons by request of the audience, creating consider- 
ble amusement, he stepped up to young Terry volun- 
tarily, put his hand on his head, and in a jocular man- 
ner said: — 

"Now, here is a jim-a-long-josey, rollicking sort of 
a fellow." 

The audience went wild over the remark, but not 
one had dared to suggest an examination of his head, 
knowing his dignified and stern nature. Terry did not 
say a word, but he very quietly and courteously took 
his lady home and immediately returned and gave the 
professor a whipping. After this no one dared to 
take any liberties with him. Although full of life, 
energy and ambition he never indulged in any levity. 
He was not born under a merry star, but was always 
apparently engaged in deep thought as though solving 
some intricate problem. He mingled with men of 
riper years, gathering what knowledge he could from 
the more experienced of his associates. After he had 
studied law he made that his business, and although 
a young man, he was considered a force and power at 
the bar, and his success was phenomenal. His older 
brother Frank was altogether a different character; 



46 LIFE OF DAVID S. TERRY. 

being genial and affable, full of push and enterprise, 
he brought, through his energies, a large amount of 
practice to the firm. He was always managing some 
large enterprise, and seemed possessed of a peculiar 
faculty which attracted the attention of men of promi- 
nence. His public services in the building of railroads 
and other services to the State gave him a power 
which led him to fortune and fame. 

In 1846, when the war between the United States 
and Mexico was inaugurated as a result of the annex- 
ation of Texas, Terry was one of the first to enlist.' 
The time of enlistment was for three months, and the 
Texan Rangers, among whom he was enrolled, were 
slow in getting to the front, owing to the tardy action 
of the government in accepting troops. General 
Taylor had occupied Matamoras, fought the battles of 
Palo Alto and Resaca de la Palma, and was encamped 
at Matamoras organizing for the battle of Monterey. 
Here the Rangers, under Colonel Wood, had assem- 
bled in a disorganized condition. When the companies 
were formed, Terry was chosen a lieutenant. Before 
leaving camp Colonel Wood was promoted, and Col- 
onel May was placed in command. The troops moved 
to Monterey and the battle was fought on the 19th, 
20th and 2 1st of September, 1846. Terry was in 
each day's engagement, as, in fact, were all the troops 
under Taylor, as he only had five thousand available 
troops and was confronted by General Ampudia with 
ten thousand regulars of the Mexican army. Here 
Terry's services ended, as the term for which he had 
enlisted had expired, and as the government would 
not receive any more recruits, he reluctantly returned 



LIFE IN TEXAS. 47 

to his law practice, and for the following three years 
divided his time in conducing law cases and in visiting 
the scenes of his childhood in Mississippi, He had a 
neighborhood fame for a contempt of all dishonorable 
and questionable transactions, and the services he had 
rendered at the battle of San Jacinto and at Monterey, 
added to his other peculiar characteristics, had traveled 
in advance of his visit to Mississippi. His relatives 
there looked upon him as a youthful hero. He there 
made the acquaintance of the young lady who became 
his wife in time, the brief acquaintance then formed 
having ripened into a stronger tie during her residence 
in Texas with her uncle -Hiram Runnels while Gov- 
ernor of the new State. 



CHAPTER V. 

Personal Description — General Characteristics 
— Becomes a Member of the Masonic Order 
AT Houston — Religious Sentiments. 

Having followed the subject of this biography from 
the cradle to manhood, a description of his person will 
not be out of place. David S. Terry was six feet and 
three inches tall and weighed two hundred and twenty 
pounds. His hair was light brown, tinged with a 
sandy shade, and was brushed back, displaying a broad, 
high forehead. His brows were heavy, overshadowing 
a steel-gray eye that moved languidly, indicating an 
absence of nervousness, yet always on the alert. He 
wore heavy chin whiskers, which covered a broad chin, 
while his upper lip was always clean shaven, present- 
ing a square mouth with lips compressed, evidences of 
the strongest determination and firmness. His head 
rested solidly upon square, bioad shoulders with a short, 
thick neck. He was naturally reticent and morose, 
but when in conversation upon pleasant topics which 
interested him, a beam of intelligence would light up 
his countenance and he would become a very agreea- 
ble and interesting companion. His taciturn mind 
deprived his Iriends of a pleasure it would have been 
to them and to him in extending sympathy when occa- 
sions demanded. His troubles were his own, and he 
did not believe in burdening others with them, yet he 
(48) 



LIFE IN TEXAS. 49 

could be as tender as a child when the sorrows of 
others engaged his sympathies. 

He was stern and inflexible in his opinions and un- 
yielding in his purposes, but would allow no one to 
surpass h'm in exhibitions of social courtesy. The 
writer's brief acquaintance with him, extending over a 
period of only five years, was a source of study. At 
first it was as the murderer of Broderick, with all the 
prejudices that could be derived from the popular con- 
demnation of that unfortunate affair. Next as the 
Confederate soldier, who had obliterated his fame as 
Chief Justice of the Supreme Court by taking up arms 
to destroy the Constitution and the Union he had 
sworn to support and defend. Then the witness came 
up testifying to his high character for honesty and 
integrity, which had never been impeached, and his 
love of truth gave emphasis to every expression with 
a fearlessness and frankness that put falsehood to 
blush. He was temperate in all things save that of a 
violent temper which he seemed powerless to control 
His will power was sufficient for all else save that. 
He was able to avoid a life of licentiousness, solely 
through a sense of honor and dignity of character. 
He was liberally endowed with both physical and 
mental force, but his irrepressible temper on trying 
occasions brought him many troubles which the exer- 
cise of his better judgment might have avoided. His 
lack of conservatism and his dogmatic disposition 
stood between him and that eminence for which nature 
had fitted him in her lavish gift of intellectual powers 
and made him notorious instead. 

Those who love to indulge in a study of the ideal 



50 LIFE OF DAVID S. TFRRY. 

philosophy taught by believers in the doctrine of The- 
bsophy, have faith in the reproduction of self in the 
ages to come in all the elements of nature, a physical, 
intellectual, moral and spiritual re-incarnation. In 
searching through the annals of history, seeking a re- 
production of characters that_ have passed away in the 
centuries, there may be such evidences of transub- 
stantiation animatmg the clay of to-day, but David S. 
Terry has no counterpart, no parallel in any human 
shape presented in history, save that of Caius Cassius, 
whose form was as colossal, whose temper was as fierce 
and uncontrollable, whose love of liberty was as great, 
whose friendships were as strong, and whose dagger 
found a sheath in the body of Csesar. But here the 
likeness ends, for no man can charge Terry with a 
misappropriation of public funds as Brutus charged 
Cassius, and he had no rjook or corner in his nature 
for jealousy. 

It was unfortunate for David S. Terry to have ma- 
tured while passing through the eventful and exciting 
scenes incident to border life in Texas, when the pas- 
sions of men were unbridled, withou a father's counsel 
and example and a mother's tenderness and admoni- 
tions. He was his own master and his own pilot 
through the turbulent waves of passion which always 
lead in the van and follow in the wake of political 
and social revolutions, and had as his companions, if 
any, men whose identities were obscure and problem- 
atical. But he inherited the chivalric blood of a brave 
Celtic ancestry, and his courage, coupled with an en- 
dowment of more than ordinary mental ability, served 
him well. 



LIFE IN TEXAS. 5I 

While in Texas he became a Mason, but whether 
he identified himself with the Order in California the 
writer has failed to ascertain. In his younger days he 
became a member of the Baptist denomination of Chris- 
tians, and for a time was so radical and enthusiastic 
I hat many thought he would drift into the pulpit. At 
all events, he was so earnest and active that he became 
a leader and exhorter. From a brief memorandum 
which is still in existence in his own handwriting, the 
following, giving his views .f the Bible, has b.en fur- 
nished by an old and valued friend: — 

"There is more within the lids of the Bible than in 
all the books in the world put together. It has fur- 
nished a kernel for every subject wo. thy of study. Re- 
lig on, history, philosophy, astronomy, law, ethnology 
— in fact, everything is blended harmoniously on its 
pages. The Creator of matter has, in its otganization 
and development, put into it the energy of His spirit 
and the power of His love. The combination is won- 
derful, and an understanding of it is too abstruse for 
finite minds to conceive," 

With all this Judge Terry was in bondage to an evil 
spirit which he could not control, and which a later and 
more progressive civilization could not educate. 



CHAPTER VI. 

Advent into California in 1849 — Battles with 
Indians while Crossing the Plains — Experi- 
ence IN the Mines — Returns to His Law 
Practices — Defeated for Mayor of Stock- 
ton — A Ludicrous Affair. 

Upon the announcement of the discovery of gold in 
California and the excitement which followed through- 
out the whole country, David S. Terry formed a small 
company of Texan Rangers, who had been his com- 
rades in the Mexican War, and started for California, 
by way of New Mexico and Arizona. In crossing the 
plains they met bands of hostile Indians who disputed 
their passage. On two occasions they gave battle, 
and the Indians were severely punished. About fifty 
Indians were killed and wounded, while the Rangers 
only lost one man. When they arrived in California in 
December, 1849, the company disbanded. Terry 
stopped for a short time in Calaveras County and tried 
his hand at mining, but the results were not satisfac- 
tory, and he left the shovel and rocker and went to 
Stockton, where he opened a law office and was soon 
in the enjoyment of a good practice. He set himself 
about to study the legal phase of the new order of 
things, which he soon mastered, and as to the social 
phase, he had but little to learn, as society was in a 

(52) 



EARLY DAYS IN CALIFORNIA. 53 

very chaotic state. The principles of justice, how- 
ever, were as highly and rigidly observed, and he was 
comparatively at home at the bar. Justice was a little 
more stringent at that time, when a horse thief and 
kindred criminals had to suffer capital punishment. 

During the same year the municipal election was 
held in Stockton, and he was induced by some of his 
friends and admirers to permit his name to go before 
the people as a candidate for mayor on the Whig 
ticket. His opponent on the Democratic ticket was 
Samuel Purdy. This was a new field for his genius, 
and that peculiar genius was lacking. He was placed 
in an extremely awkward position. Nature had de- 
prived him of every element that goes to make up the 
successful politician. He could not solicit votes. He 
was too honorable to buy and too proud to beg, and of 
course he was defeated. The simple matter of defeat 
and the chagrin was the only regret he had, for, as he 
afterwards expressed himself, " Had I been elected I 
would not have known what to have done with the 
office. I would have made a poor mayor." 

A very ludicrous affair occurred during 1850, which 
might not have proved so amusing had it not been 
for his exhibition of coolness and utter fearlessness 
under difficulties. He had never handled a rifle or 
pistol to any great extent, preferring the Texas mode 
of defense with the bowie knife. He was not a good 
shot with either, and he knew it. A man named Rob- 
erts, who claimed to be both lawyer and physician, 
came to Stockton from Mexico. He was a glib talker, 
and by his winning manners had succeeded in securing 
Terry's friendship, and Terry would fight for a friend 



54 LIFE OF DAVID S. TERRY. 

as quickly as he would for Terry. George S. Belt, a 
prominent merchant of Stockton at that time, became 
acquainted with the fact that Rober.s was a horse 
thief, and had been a highway robber in Mexico, and 
Belt was not careful about making it public. Terry 
hearing the story, denounced it as a falsehood, and 
Belt challenged him to fight a duel, sending the chal- 
lenge through a man named Henry Marshall. Terry 
accepted the challenge, and named D. W. Perley as 
his friend. Being the challenged party he claimed the 
right to choose the weapons and name the distance. 
He chose pistols and named the distance ten paces. 
To this Marshall objected, stating that the short dis- 
tance was unprecedented, barbarous and murderous, 
but Terry was inflexible. W. F. Swasey, an old pio- 
neer of 1844, who was acquainted with the code duello, 
was in Stockton at the time. The question was re- 
ferred to him by Terry, Marshall and Perley. He de- 
cided that so long as the challenge remained Terry had 
the right to name the distance. On the ground selected 
the next morning, Marshall desired to reopen negotia- 
tions in relation to distance, offering to withdraw the 
challenge temporarily and without prejudice. He was 
informed that no other proposition would be entertained. 
The amusing part of it was Terry and Belt were both 
large, tall men, and at a distance of ten feejt their pistols 
would almost touch. Swasey asked Terry why he in- 
sisted upon so short a distance. He replied: " Belt is 
a noted dead shot with either pistol or ri;'e. I am not 
an expert with either, and if he lacks nerve he is less 
liable to hit me at ten paces than at thirty paces, and 
I know I can hit him at ten paces." The challenge 



EARLY DAYS IN CALIFORNIA. 55 

was finally withdrawn. After this it was proven that 
Roberts was a horse thief and had been a highwayman, 
and Terry went to Belt, shook hands, and was ever 
after his firm friend. Bek, who was a fiery South- 
erner, was afterwards killed in a street fight at Stock- 
ton, and Marshall was shot dead by a nam named 
McElroy at Sonora, Tuolumne County. 



CHAPTER VII. 

Concludes He Is Not a Politician — Professional 
Success — A Subject for Legendary Stories. 

After his defeat for mayor of Stockton, Terry con- 
cluded to let politics alone and study men and the new- 
order of things in the various fields of activity that pre- 
sented such a motley phase of moral and social ethics. 
He was satisfied that his nature and education were 
not properly adjusted to such a condition, as he de- 
spised the sycophancy that must necessarily enter into 
the composition of the successful candidate. Accord- 
ingly he turned to his law books, formed a copartner- 
ship with D. W, Perley, and pursued his profession 
without dividing his time and attention with other mat- 
ters. In this connection an incident is given by a 
gentleman who speaks through the Denver Republi- 
can of August 15, 1889. The reminiscence may be 
called legendary, as the story is not vouched for by 
any member of the Stockton bar, a few of whom still 
live who were professional contemporaries of David 
S. Terry. It is probably in keeping with a thousand 
other stories that have found place in the imagination 
of men who, through prejudice and fear of the man 
when alive, became maliciously and wickedly brave at 
his death. Of course the story is clothed in all the 
dark colors that a retired Bohemian could paint, and 
it is presented here only to divert the mind of the reader 
(56) 



EARLY DAYS IN CALIFORNIA. 5Jf 

in the character of an episode for relaxation of the mind 
absorbed in dwelling upon facts. Distant from the 
scene, and safe from danger, this newspa; er corre- 
spondent presents this splendid falsehood as a funeral 
present to the murdered jurist: — 

"It was in June, 1853, and at Stockton, in Califor- 
nia, when the summer term of the District Court was 
to convene, that I first met the fire-eating Texan, then 
an attorney. The people of the country had elected 
Ben McCullough, also a fire-eater, as sheriff. Most 
of the lawyers sat with pistols in their belts, and the 
judge, as I remember, had a bowie knife. 

"The first case was called by the court, the jury 
impaneled, and, while waiting for the next one on the 
calendar, I seated myself at the bar table, having busi- 
ness with the court myself. 

"Just at this juncture in walked David S. Terry, 
a picturesque-looking individual. He was then a 
young man, about six feet high, and on this occasion 
he was without coat or cravat, and on his feet were 
slippers but no stockings. From under his vest pro- 
truded the identical dueling pistol with which, years 
afterward, he killed David C. Broderick. On his other 
hip opposite the pistol was a wicked-looking bowie 
knife. Terry, on taking his seat at the table, placed 
his foot on top of the same and commenced cross- 
questioning the witness. The witness was a consump- 
tive-looking fellow. Said Terry: 'What's your name.-*' 
The poor fellow replied, in a feeble voice, 'Williams, 
sir.' 'Have you ever been indicted in this court.'*' 
'Yes, sir; and you caused me to be indicted, but the 
indictment was nolle prossed.' 'What's that you say?' 



58 LIFE OF DAVID S. TERRY. 

said Terry. 'Answer my question and nothing else.' 
And thereupon the judge spoke and said, 'Confine 
your answer to the question, please;' and when Terry 
repeated the question poor WiUiams, strong even in 
death, repeated the answer, and thereupon Terry, jump- 
ing across the table, drew his bowie knife and rushing 
upon the poor, sick witness in the stand like an Apache 
Indian, cut away at the railing of the witness stand, 
and had he not been seized and grappled with by the 
judge and Ben McCullough would have cut the Yan- 
kee witness into mince-meat. During this scene the 
perspiration was running from Terry like water, and 
his disheveled hair, frothing mouth and gleaming knife 
presented the most extraordinary specimen of an ad- 
vocate and counselor at law that I have ever met at 
the bar in my practice of fifty years." 

Terry was a terror. In many instances truth be- 
comes a terror, and in defending it the channpion is 
often charged with terrorizing and loses caste among 
his fellows. The reader will pardon a reference to 
other statements made by the same writer which are 
given below, as it is absolutely refreshing to know how 
courageous some men can become after the cause of 
fear has been removed and placed beyond the power 
of defense. He speaks of Terry's "frenzied moods" 
as though he were a maniac. They were not moods, 
but outbursts of irrepressible anger caused by breaches 
of his self-constituted ideas of dignity and respect. 
These "frenzied moods" were, "like angels' visits, 
few and far between," and have been woven by indus- 
trious pens and tonges into the web of his life by the 
shuttle of political prejudice solely on account of his 



EARLY DAYS IN CALIFORNIA. 59 

duel with Broderick, who intended to kill Terry, and 
made his boasts that he would do so. In referring 
to this the writer says: — 

" Like Duke Gwin, he could brook no dispute, and 
the ever-ready pistol and handy bowie knife were his 
most potent and convincing arguments. From an 
humble attorney of the bar he became the supreme 
judge of the highest court in the State, and, while 
acting in this capacity, he performed th'e murderous 
deed which ever afterward consigned his name to 
everlasting infamy in the minds of all honorable men, 
the deliberate, premeditated murder of United States 
Senator David C. Broderick, in San Francisco, on 
September 20, 1859." 

As this history progresses the absurdity of such as 
the above will gradually disappear. Contemporaneous 
writers and verified documents will put such state- 
ments to the blush. 



CHAPTER VIII. 

Married in Mississippi, to Miss Cornelia Runnels 
— A Woman of Rare Qualities of Mind and 
Heart — Settled in Stockton — His Family 
Relations — Distressing Incidents. 

Miss Cornelia Runnels was the daughter of Har- 
mon Runnels, a large cotton planter, who lived in 
Hinds County, Mississippi, six miles northeast of 
Jackson, on Pearl River, Hiram Runnels had mar- 
ried a Miss Smith, who was David S. Terry's aunt; 
and while Cornelia and David were not full cousins, 
the close connection between the families entered 
largely into their relationship in after life as husband 
and wife. Cornelia's father died when she was a 
child, and she became the ward of her uncle Hiram 
Runnels, who was twice a member of Congress, Gov- 
ernor of Mississippi, and later Governor of Texas. 
She was naturally a woman of great force of char- 
acter, possessing a bright intellect, polished with a 
liberal education. Her brief acquaintance with David 
S. Terry, during her short stay in Texas, renewed by 
his visit to Mississippi in 1848, ripened into more 
than a mere cousinly regard, and, in 1852, having 
prospered in his profession, in a worldly sense, he 
went to Mississippi, and made her his wife. At that 
time Terry was twenty-seven years of age, and Miss 
(60) 



EARLY DAYS IN CALIFORNIA. 6 1 

Runnels twenty-three. He immediately returned to 
Stockton with his wife, and her graceful deportment 
and refined manners soon attracted the attention of 
all with whom she came in contact. She exercised 
a wonderful influence over her husband, and directed 
her energies and her social standing to secure success 
to him in all his undertakings. One who was as a 
mother to her in California, in speaking of her said 
to the writer: "When she died her hand was in mine, 
I loved her next to my daughter, who died, and whose 
place she had taken in my heart. She was one of 
the sweetest, purest, and noblest of women. During 
her life she proved a heroine in her devotion, and she 
died a martyr in his behalf." During the few years 
following his marriage, he became a very changed 
man. He was attentive to business and devoted to 
his household, and grew largely in the estimation of 
those with whom he had formerly associated. His 
upward tendency in the social, as well as a profes- 
sional, scale arrested the attention of men of influence. 
He had no superiors at the bar in point of legal 
acumen. He was brief, terse, and logical in all his 
arguments; in fact, he was a bundle of logic and 
brevity. In time his cold, bruff manner of speaking 
became a part of his reputation, and not only ceased 
to be repulsivG, but was actually pleasant to hear, 
charged as it was with legal value. He never courted 
praise or applause. Up to this time he had been the 
quiet, exemplary citizen, and had not displayed that 
irritability of temper which slumbered in his compo- 
sition. On a few occasions he had exhibited a cool- 
ness and courage, and occasionally a petulancy, which 

5 • 



62 LIFE OF DAVID S. TERRY. 

indicated that he was capable of taking care of himself 
in any emergency, but the supreme moment had not 
come to call forth the evil passions which clothed him 
as "a monster of hideous mien" in later days. His 
character was fully established as a man of honor and 
strict integrity, and on this foundation his reputation 
rested. 

His first child, Frank, was born in 1853, and died 
when only seven months old. Samuel, the second 
son, was born in 1854. He was a promising young 
man, partaking largely of the attributes of his mother. 
He was educated at the college at Vacaville for a 
time, finishing his education at the Episcopal school 
at Benicia. He studied law, and was a prominent 
and prosperous member of the Stockton bar. In 
1883 he was elected to the Assembly, and served 
with distinguished ability, being chairman of the Judi- 
ciary Committee. He was a favorite among his asso- 
ciates, and a prominent member of the organization 
of Native Sons. He died in April, 1884, aged thirty 
years. David S., the third son, born in 1856, was a 
bright boy, and resembled his father. He was a rest- 
less and unruly boy, and fond of outdoor amusements. 
At the age of seventeen years he accompanied a man, 
named Ben Lee, to spend a few months on the stock 
ranch of a Mr. Beal, near Tejon Pass, in Kern County. 
He was fond of hunting game, and took with him all 
the necessary arms and accoutrements. A few days 
after arriving at the ranch, he received a letter from 
his father, calling him home. While in his room pre- 
paring to return to Stockton, he accidentally let a 
pistol fall from his hand, and, in striking the floor, it 



EARLY DAYS IN CALIFORNIA. 63 

was discharged. The ball entered his breast, killing 
him instantly. This occurred in November, 1873, 
and was a serious blow to the family, as he was a 
young man of excellent mind and great promise. 

Clinton H. Terry, the fourth son and only surviving 
member of the family, is a well-educated, bright, and 
gentlemanly young man. He studied engineering, 
and has been engaged for several years as chief of 
the San Joaquin River Navigation Company. He 
was engineer in the Mint at San Francisco during the 
administration of President Cleveland, and is now in 
the employ of the Upper Sacramento River Naviga- 
tion Company. He is married and has a small family, 
who live in Oakland. 

Two other sons were born, but died in infancy. 
His admiration for his oldest brother, Frank, caused 
him to name a second child for him, and the youngest 
was named fo^ Jefferson Davis. 

Many years have been passed over following his 
family and their fortunes, and, in noting such a trend 
of misfortunes and bereavements, the keen eye of 
prejudice, which always looks for some Compensating 
disaster, has discovered in the strange incidents the 
avenger predestined by divine Providence to punish 
the father for alleged transgressions and violence. 
" The blood of Broderick and Hopkins is on his 
hands, and his offspring suffer for his crimes," has 
been uttered by the lips of believers in divine retri- 
bution. Such ghastly speculations are only indulged 
in by the superstitious, who drink copious draughts 
from the same source that imbues the Arabian prophet 
with an irrepressible impulse to make his annual pil- 



64 LIFE OF DAVID S. TERRY. 

grimage to the shrine at Mecca. It does violence to 
the civilization that has thrown back the sable curtain 
of the Dark Ages and stepped upon a ngw era of en- 
lightenment, with mind educated by science, ennobled 
by the touch of art, and disenthralled by freedom and 
progression. 

Returning now to the subject of the story, the 
reader's attention is called to the political triumph 
which came to David S. Terry by force of circum- 
stances and without the unworthy efforts usually put 
forth by politicians. 



CHAPTER IX. 

Politics AND Political Parties — Broderick's Ad- 
vent INTO California — Broderick and Gwin — 
Terry Becomes a Know-Nothing — Disgusted 
WITH THE Broderick and Gwin Methods. 

In 1855 the political situation was vexatious to him. 
The existence of the two old parties was threatened 
by the encroachments of the Free Soil sentiment and 
the insidious workings of a secret political organization 
called "Know-Nothings." The old Whig party, to 
which he belonged, was becoming dismembered, and 
the Democratic party was hopelessly divided in Cali- 
fornia through the corrupt and questionable methods 
adopted by Gwin and Broderick in their warfare for a 
seat in the United States Senate. Terry was not a 
trimmer and stuffer. He believed that there was no 
dignity outside of an honest exposition of principles. 
If a man had not the courage of his convictions he 
would bear watching. The adoption of the Kansas- 
Nebraska bill in 1854 by Congress virtually repealed 
the Missouri Compromise of 1820. The American 
sentiment was spreading rapidly. Already the Know- 
Nothings had spread consternation among the leaders 
of bcth the old parties in the Eastern States in such 
volume as to predict a political revolution. The 
changes were so radical in many of the States that all 

(65) 



66 L1f£ of DAVID S. TERRV. 

hopes of the Whig party surviving the attack upon Its 
organization were lost, and the repeal of the Missouri 
Compromise was such a menace to slavery, in view of 
the approach of the Free Soil element, that Terry, who 
was an ultra Southern man, had no choice left but to 
ally himself with the Know-Nothing party, believing 
that it would take root in the principles of the pro- 
slavery sentiment and neutralize the radical feeling 
which threatened the peace and prosperity of the 
country by sectional divisions. 

This was the condition of affairs in California when 
the State conventions of 1855 assembled to nominate 
candidates for office. Terry was not alone in his con- 
victions. The better class of people, who had not 
made politics a trade, were of the same opinion, and 
when the Democrats met there was a stormy time in 
their convention. They could not adjust their differ- 
ences, and the Gwin and Broderick elements split, and 
each nominated a ticket. 

It will be necessary, in order to give the reader a 
clear conception of the causes which led up to one of the 
most important incidents in the life of David S. Terry, 
to present a chapter of political history in which other 
important personages took an active part and made 
the conditions possible which led up to tragic events, 
the absence of which would have removed the neces- 
sity for this biography. 

William M. Gwin, a native of Tennessee, came to 
California in 1849, and, being a man of great force of 
character and ambitious in his desires to reach political 
eminence, won distinction by being elected one of the 
first United States senators to represent the new State 



EARLY DAYS IN CALIFORNIA. 67 

in Congress in 1850. John C. Fremont, the "Path- 
finder," was his colleague, and in casting lots for the 
long and short terms, Gwin secured the former. He 
was a man of acknowledged ability, but he was not as 
scrupulously honest in his political methods as he might 
have been. No successful politicians are who make of 
politics a trade and labor for position. They lack the 
true elements of statesmanship. He had won the 
confidence of the Southern, or "chivalry," wing of the 
Democratic party, and had many staunch friends and 
admirers among the members of that party from the 
Northern States. In referring to this in after years 
when operating for the colonization of Sonora, in a 
letter to his brother, Gwin says: — 

"It is a great work I propose to do, to populate an 
important part of an empire, now held by wild In- 
dians for more than a hundred years. It is the richest 
mining country in the world, and will attract thousands 
of enterprising men. I intend to reverse my action 
in California. I went there determined not to make 
money, but to devote all 7uy energies to obtaining and 
maintaining political power. Now I go for money, 
and shall let power alone. I want no dukedoms, nor 
any honors the emperor can bestow upon me. Noth- 
ing can be as high as what I have been as a senator 
in the greatest body of the greatest nation on earth." 

David C. Broderick was a native of the District of 
Columbia, the son of a stonecutter, which trade he 
also learned, and in early life he made his home in 
New York City, where he mingled with his fellows 
and took an active part in politics. He belonged to 
the firemen, and his Celtic blood, always charged with 



6S LIFE OF DAVID S. TERRY. 

ambition for political distinction, led him forward in 
that line. Possessing a large share of native ability, 
and animated by strong physical force and a desire for 
position abovd his fellows, as the saying is, "he toojk 
to politics as a duck takes to water," He was as true 
a type of the Irish chivalry as Gwin was of the South- 
ern chivalry, and for the matter of "gall," he had no 
peer in California. After becoming thoroughly identi- 
fied with the New York firemen he opened a saloon 
as an aid to his ambitious desires. He became the 
pupil of the notorious Mike Walsh and Jerry Rynders, 
and having united with the Tammany organization, his 
peculiar genius soon placed him in a position where he 
commanded a lucrative office in the New York Cus- 
tom House. While this position was remunerative, it 
did not satisfy his ambition. He aspired to something 
more conspicuous, and in 1848 he determined to run 
for Congress. By manipulating the "boys," he secured 
the nomination in his district, which was strongly 
Democratic. There were many men of good stand- 
ing who did not admire the young man's style, and 
after the Whigs had nominated a man of prominence 
and ability, they set to work to secure Broderick's de- 
feat, as they preferred a worthy opponent to him. In 
order to accomplish their object they placed another 
candidate in the field, named Jack Bloodgood, a scion 
of the ancient Knickerbocker stock, but a poor lawyer 
and not very temperate in his habits. They succeeded 
in their object and Broderick was defeated. The 
Whig candidate was elected. This defeat changed the 
whole course of his life, and in 1849, when gold was 
*"-be drawing card in California, he shook the dust of 



lEARLY DAYS IN CALIFORNIA. 69 

New York from his feet and resolved that he would 
never return until he could come as a senator of the 
United States. 

He arrived in San Francisco in the summer of 1849, 
and, being practically without money, he determined 
at first to resort to his trade for means of a livelihood, 
but he met Col. J. D. Stephenson, who had been a 
friend to him in New York, and he furnished him the 
necessary means to go into business. In 1850 he was 
elected to fill a vacancy in the State Senate, and upon 
the occasion of a vacancy which occurred in the office 
of president of the Senate, he was chosen to fill that 
position. This recognition of his genius elated him, 
and from that moment he began to connive for a seat 
in the United States Senate, soon to become vacant 
by the expiration of the term for which Fremont was 
chosen. He was liberally endowed with magnetic 
power, and could convert enemies into friends with all 
the ease possible. He Rad studied the tacticts of 
political manipulation during his associations with the 
Tammany chiefs and as a pupil of Mike Walsh. His 
habit was to associate with men of brains and influ- 
ence, study their various natures, note their customs, 
and make friends with such as could be made useful 
in furthering his aspirations. He was an expert in 
manipulating men, but he failed to secure the neces- 
sary support to hoist him into the senatorial seat, as 
he so much desired. John B. Weller was elected to 
succeed Fremont in 1852, and as Gwin's term would 
not expire until 1855, Broderick began the fight to 
succeed him. 

The following brief history of this memorable con- 



yO LIFE OF DAVID S. TERRY. 

flict is from the pen of James O'Meara, who was a 
friend of Broderick and also an admirer of Gwin, and 
as a participant in the political battle at that time, can 
be relied upon as being correct. 



CHAPTER X. 

Broderick's Methods and Ambition — Duel with 
Caleb B. Smith — Attempt to Change Estab- 
lished Custom to Secure a Seat in the United 
States Senate. 

"Broderick's opportunity to make himself the suc- 
cessor of Gwin in the Senate of the United States 
now entirely possessed him. He schemed and strug- 
gled for it by day and by night, ceaselessly, without 
scruple as to means, and with an energy that would 
have exhausted a less robust and less indomitable na- 
ture. Weller had beaten him; he was resolved that 
Gwin should not, if there was power that could be 
brought, no matter how, to prevent it. He was well 
aware that it was a desperate adventure upon the deep 
waters of political enterprise, and knew that many and 
towering difficulties must be encountered and over- 
borne; that failure in any important particular would 
be ruin to all his hopes, and that opposed to him stood 
not only the then formidable wall of the Southern 
Whig vote, but the large proportion of the Democratic 
party, led by distinguished men who had won distinc- 
tion as worthy leaders in the States they had left to 
embark upon a new destiny in the Golden State. But 
he counted all the difficulties, resolved to take all the 
risks,- and with the unalterable determination to gain 
the goal of his consuming ambition, or to die while iry- 

(71) 



';± ' LIFE OF DAVID S. TERRY. 

ing, he formed his crude plans and proceeded to their 
accomplishment. At the very outset he alike intem- 
perately rushed and terribly blundered into personal 
difficulties which a better-regulated temper, or a fair 
degree of prudence, would have led him to avoid. His 
course had raised up against him in San Francisco a 
very hostile feeling within the Democratic party, and 
in the primary elections this sentiment had triumphed 
during the session of the Legislature. The defeat of 
his faction, and in so far of his scheme, impelled him 
to use violent language in relation to ex-Governor 
Smith, of Virginia, a conspicuous leader of the domi- 
nant wing, which nothing could justify; nor could he 
retract it without something of self-dishonor and the 
taint of cowardice, which alone would have been fatal 
to his senatorial aspirations." 

He fought a duel with Judge Caleb B. Smith, son 
of ex-Governor Smith, on the 17th ,of March, 1852, 
on ground near Oakland Point. A watch in his fob 
pocket saved his life, and after the duel he withdrew 
the offensive remarks in presence of a full Senate. 

"In the South, as in nearly all the States, except 
New York, the Tammany system was not in vogue at 
the time of the gold discovery in California, and hence 
neither Gwin nor the mass of the Democrats in the 
State were versed in or accustomed to it. In fact, they 
were generally averse to it. But it was a first consid- 
eration of Broderick in his struggle for a seat in the 
United States Senate, to institute the Tammany sys- 
tem of organization in every county where he could 
get foothold. This was his initial plan on which to 
base his fight against Gwin, and it was sagaciously 



EARLY DAYS IN CALIFORNIA, 73 

determined; for had he succeeded in it, no power within 
the Democratic party, then in the supremacy, could 
have stood against him as its arbitrary chief. Gwin 
chose, in some portions of the St^te, to" accept the 
gauge of battle, and to fight Broderick with the party 
tactics of his own Tammany order; but his main plan 
of action was that to which he had always been accus- 
tomed — the old-fashioned, popular mode of organizing 
and prosecuting party campaigns, and the mode gener- 
ally adhered to in the West and South — that of unre- 
stricted and untutored action on every fresh occasion, 
without partisan machinery, and, in the common par- 
lance, 'free and aboveboard.' To this popular method 
of managing party affairs throughout the State, Dr. 
Gwin never failed to supplement his own marvelous 
skill and efficiency in what is known as 'still hunting.' 
"Popular oratory was not G win's forte, no more 
than it was Broderick's. Neither of them possessed 
that fluency of speech and happy, off-hand address 
which charm, divert and sway multitudes. The two 
were alike in the one quality of prevailing with those 
who were the popular leaders of the multitude by their 
own superior powers of personal magnetism or per- 
suasion ; but yet they were as different as darkness and 
light in their respective manner of thus prevailing 
with men, Broderick was so entirely immersed in his 
own plans, and so completely absorbed by his own 
ambition, that he was irascible in his impatient require- 
ment upon all whom he sought as his aids or adherents, 
and frequently repelled the very men he most needed. 
He was naturally of an overbearing, domineering dis- 
position, and this had grown upon him in his New 



74 LIFE OF DAVID S. TERRY. 

York career as one of the master spirits of the fire 
department, and in Tammany Hall. In his fierce zeal" 
or hot wrath, because of temporary disappointments, 
or occasional disagreements with even his own devoted 
followers, he would explode a torrent of harsh invec- 
tive, or give vent to vehement imprecation and foul 
abuse. His most difficult struggle was to master 
himself, and the failure to do this sometimes cost 
him and lost him the men whom he most wished to 
secure and to retain as friends and supporters. In all 
these personal qualities Gwin was the opposite of 
Broderick. No man had better self-control. He was the 
cautious master of many men of master minds, but he 
was always the most cautious master of his own strong, 
vigorous, sometimes grandly violent, nature; and he 
never allowed any, whether friend or foe, to depart from 
his presence with the rankling feeling of an ill-natured 
word, or sense of wrong from any cause, unless he had 
deliberately determined upon such a course, and meant 
not to be misunderstood. He looked a great man; his 
life had been in intimate relations with the greatest in 
the land, and he was in leading respects, beyond ques- 
tion of rivalry, the greatest who challenged the suf- 
frages and the confidence of the predominant party in 
California. 

"The larger proportion of the men of Southern birth 
and sentiment favored him in preference to any other. 
Most of the Western men, led mainly by Col. Tom Hen- 
ley, the 'war horse' of the Democracy, supported him; 
and among the New York Democrats, and those from 
other Northern States, many of them merchants and 
men of wealth, he had a very formidable following, 



EARLY DAYS IN CALIFORNIA. 75 

Broderick's chief strength was in San Francisco. Here 
he had succeeded in planting his Tammany system of 
organization, and he controlled it. But it was not 
even here the controlling wing. The same class that 
has been most faithful to his memory since his un- 
timely death, were then almost his only supporters, 
and while they were the most active in the party 
organization, the anti-Broderick wing was the most for- 
midable in numbers and influence here and throughout 
the State. Still, he was assiduously teaching active 
and aspiring men in every county the tactics by which, 
by helping himself as chief organizer, they were cer- 
tain at last also to promote their own individual inter- 
ests; and where persuasion failed, he had no scruples 
in obtaining supporters and aids by other means. He 
never allowed any obstacle to stand between him and 
his object, so long as he could employ the arts to re- 
move or surmount it. He never shrank from the rule, 
never hesitated to apply it. To win was the invincible 
determination; by what means to win was a question 
to be decided as the occasion occurred. Hence, against 
the tremendous odds he found opposed to him, he was 
prompted to a plan to come sharply to the ambition of 
his soul, in defiance of the opposition. It was a deep 
and subtle scheme, at once crafty and bold, daring and 
desperate. It was, in the face of all past usage, ab-. 
horrent to the popular sentiment. It struck at the 
sancity of all precedent; it was, in a measure, revolu- 
tionary. It never had example; it is still without 
parallel. Politically, it convulsed the State. It created 
consternation here, and was the cause of eager specu- 
lation at Washington. Throughout the Union the 



^6 LIFE OF DAVID S. TERRY. 

protracted struggle was viewed with various emotions 
of curiosity and alarm. 

"He attracted to his side and cause a formidable 
number of the disappointed aspirants and applicants 
for federal positions in the various departments of the 
government service, most of whom had labored with 
and occupied more or less conspicuous positions in 
the wing opposed to him, and who fought for selfish 
ends more than for any real devotion to Democratic 
principles. And in the fierce and bitter struggle for 
the supremacy which Broderick waged that year to 
get control of the nominating conventions throughout 
the State, for State officers, and the Legislature espe- 
cially, these unprincipled allies proved to him of great 
service. Yet, notwithstanding his most arduous labors, 
and the application of Broderick's unscrupulous and 
skillful tactics to gain this supremacy, he was only 
partially successful throughout the State, and in his 
own chosen stronghold of San Francisco. He suc- 
ceeded in securing Bigler's renomination for Governor 
over Major Roman, but the popular Democratic senti- 
ment was so strongly averse that, while the other 
candidates upon ihe State ticket received large major- 
ities, the election of Governor Bigler was barely an 
escape from defeat. It was vital to Broderick's un- 
developed scheme to have Bigler renominated and re- 
elected, and to the consummation of that scheme the 
election of a majority of the senators and assembly- 
men for the ensuing Legislature was likewise essential. 
But in this part of his scheme Broderick failed, and 
the failure compelled him to a change of tactics, and 
devolved upon him the exhausting strain and heavy 



EARLr t)AYS IN CALIFORNIA. ^7 

expense of two years more of the most remarkable 
political campaigning that has ever been known in a 
struggle for a seat in the Senate of the United States. 

*'It was this scheme which, at the time of its an- 
nouncement to the public, created unparalleled sur- 
prise and consternation in the Democratic ranks and 
throughout the community. It startled the oldest 
politicians, and perplexed senators and the great men 
in power in Washington. Nothing like it or equal to 
it had ever been conceived or suggested in any State 
from the birth of the republic. It struck at the ac- 
cepted spirit of the Federal Constitution, as the in- 
strument itself had been interpreted from the earliest 
periods, and yet no man could authoritatively assert 
that it was in contravention of the express letter of the 
article and sections which relate to the election of 
United States senators. Everybody was amazed at 
the unexampled presumption which inspired the aston- 
ishing proposition; and yet everybody who knew Da- 
vid C. Broderick well enough to fairly estimate the 
man, at once comprehended that, extraordinary and 
incredible as it appeared, the proposition was one from 
which he would not shrink, nor would falter in press- 
ing to the last extremity, so long as there remained to 
it the faintest possibility of accomplishment, entirely 
regardless of public sentiment, wholly disdainful of 
precedent and usage, and without any other thought 
or care or anxiety in connection with it, except the 
sole consideration of its feasibility and its success. 

It is due, however, to the memory of Broderick to 
state that he was not the conceiver of the scheme; 
that it did not originate in his own busy brain, driven 
6 



78 LIFE OF DAVID S. TERRY. 

to high pressure as it was by the intense labors his 
own unsparing and incessant drafts made upon it in 
the ceaseless pursuit of the object of his consuming 
ambition; and that, in his impetuous fervor to grasp 
that object at the earliest moment, his moral percep- 
tion was so overcast by the instinctive belief that the 
prize was really within his reach as to blind him to 
every other thought or concernment in connection with 
it, either moral or physical. The opportunity was 
pointed out to him by the man in whom, above all 
others, he reposed the utmost confidence. He had 
been led to see the way, and he felt that he could sup- 
ply the means. It was as the showing to one well- 
nigh hopeless and in despair in the darkness of the 
Valley of Death the faint glimmer of the light of life 
— to impart fresh inspiration for the final desperate 
struggle, which might rescue him from the near im- 
pending doom, no matter at what peril or cost the 
struggle should be made; and to triumph in it every- 
thing else in nature must be subordinated^ — riches, 
friends, conscience — all except self alone. It was in 
this spirit Broderick waged his memorable fight for 
the Senate during the session of the Legislature of 
1854. The Constitution of the United States did not 
expressly forbid the election at that time, but the un- 
broken precedent of all the States, and the unanimous 
expectation of the people of California, were opposed 
to such an election. It was the design and proposi- 
tion of George Wilkes, in whom Broderick had im- 
plicit faith, and who was singularly fertile of resources 
in desperate exigencies. He cared nothing for the 
spirit of constitutions or laws. What could be done 



EARLY DAYS IN CALIFORNIA. 79 

was his measure of what should be done. * Is it so 
nominated in the bond?' 'Does the Constitution or 
the law expressly declare or provide against so and 
so?' These were his o-uides to action in all such 
matters, and he so read the Constitution and inter- 
preted the law to Broderick, until he fired him with 
the resolution to make his bold push for the Senate 
by forcing the election by the Legislature one year in 
advance of the accepted and allotted time. He made 
it the fight of fights in California politics." 



CHAPTER XI. 

David S. Terry Conspicuous as a Possible Candi- 
date FOR Supreme Judge — His Nomination — 
■ Election of 1855 — Know-Nothings Victo- 
rious — Terry Elected Associate Justice of 
the Supreme Court. 

The election of 1853 came, and, as a result of 
Broderick's Tammany system of organization, he se- 
cured a good majority in the Assembly, but the Senate 
was problematical. There were one or two men who 
were stubborn in their adhesion to established political 
forms, and to these men Broderick directed his at- 
tention. This Legislature was composed of men a 
large number of whom became prominent in the after 
history of the State. Among them was Royal T. 
Sprague, James Coffroth, Judge Hager, John Con- 
ness, Chas. Fairfax, Judge Bryan, and Judge Hall. 
The supporters of Broderick were more conspicuous 
for ability in every way than those of Gwin, and all, 
save Sprague, of Shasta, favored his scheme. That 
one vote would defeat it. These men knew Brod- 
erick well enough to cause them to feel that sooner 
than suffer defeat he would forego every other earthly 
consideration, if not of the hereafter as well; that he 
would not hesitate to sacrifice all in life, and all except 
life itself, to win, for his terrible earnestness and his 

(80) 



CALIFORNIA POLITICS. 8 1 

devouring ambition had neither remorse nor pause 
this side the grave. 

" It was George Wilkes' device, the proposition to 
elect the United States Senator to succeed Dr. Gwin, 
March 4, 1855, one year in advance of the regular 
time, according to precedent and expectation — to 
pass a bill to authorize that very Legislature to elect 
the senator — to appoint the day for election by joint 
convention; and, this done, the election of David C. 
Broderick as the senator would follow as the inevit- 
able matter of course. Should he be able to prevail 
upon the Legislature to order the election at that 
session, it would be impossible to defeat him of the 
election as senator. And when this conviction broke 
upon the leading men of the Democratic party of the 
State who were opposed to Broderick for senator, or 
who preferred another for the place, the process was 
rapid, though deliberate, from astonishment and con- 
sternation to preparation for the strong and well- 
organized resistance that each man felt would be nec- 
essary, but which might not, after all, avail against 
the already-organized plan of the Broderick forces. 

"In. his desperate scheme to force the election of 
United States senator one year in advance of the 
proper time, as precedent had established it, at the 
session of 1854, Broderick stood alone in the mighty 
contest, with all the allied powers arrayed to defeat 
him. As declared or possible aspirants for the place, 
on the other side, were four or five; but the avowed 
candidates were Senator Gwin, for the succession to 
his own seat, and General James A. McDougall, then 
Representative in Congress. Both were in Wash- 



82 LIFE OF DAVID S. TERRY. 

ington, but each had his trusted agents and workers 
at Benicia, and wherever else they could be of service. 
Major Hammond championed Gwin's cause, with a 
reserve in his own behalf should any contingency 
arise to warrant his own avowed candidacy. General 
McDougall's chief agent was Henry B. Truett, a 
prosperous merchant, formerly mayor of Galena, 111., 
who had acquitted himself in a very creditable man- 
ner in a quarrel with Broderick, in the Union Hotel 
bar room — Broderick's headquarters at the time — to 
which he had gone unattended, and where Broderick's 
attack upon him had been unprovoked. As aid to 
Truett, for McDougall, was Reuben J. Moloney, for- 
merly of Illinois and New York, and a widely-known 
politician of the early California period. Prominent 
among Gwin's supporters were Major Folsom, Cap- 
tain Bissell, and the Pacific Mail Steamship Company. 
Broderick was principally backed by Palmer, Cook 
& Co., and in the front rank of his active workers 
were A. A. Selover, John Middleton, Judge Ned 
McGowan, Colonel A. J. Butler, Thomas Maguire, 
Robert J. Woods (a Southern man of much local in- 
fluence), and Frank Tilford, whom he had appointed 
district judge in this city. General James M. Estill 
was also favorable to him at that session, and he was 
a political manager of uncommon energy and address, 
who exercised great power in moulding political events. 
"The Legislature convened January 2. January 27 
Assemblyman Gordon, of Amador, gave notice that 
on the following day he would introduce a bill to fix 
a day on which the Legislature then in session should 
elect a United States senator to succeed Dr. Gwin. 



CALIFORNIA POLITICS. S^ 

The next day he introduced the bill. On motion of 
Mandeville (anti-Broderick man), against a motion of 
Hoff (Broderick), to refer it to the Judiciary Com- 
mittee, it was made the special order for January 31 
by a vote of 37 to 32. It was Broderick's bill. The 
first vote upon it was an anti-Broderick victory, but 
an unimportant one. Then followed the fiercest and 
longest-protracted fight of magnitude ever made in 
the Legislature of California. 

"The two Houses were largely Democratic; the 
State was Democratic; that year, further on, the 
State Convention would be held for making con- 
gressional nominations, equivalent to election. And 
hence the significance of the queer scene which oc- 
curred one Saturday morning in the Assembly Cham- 
ber, in Benicia, early in the session, when honest old 
Colonel W. W, Gift entered with a six-shooter in 
hand, and cried out aloud to the House that, were 
he to point the weapon and threaten to shoot the first 
one who should dare to announce himself a candidate 
for Congress, three-fourths of them would dodge under 
their desks. In his wild pleasantry the sterling vet- 
eran simply touched upon the raw. The first open 
step to influence or attract public opinion was the 
preparation of an argument, on Broderick's side, to 
show why the election ought to be held that session, 
and to convince the people that it was nearer right 
than revolutionary. The sum and substance of the 
argument was, that as the senator to succeed Dr. 
Gwin might be required to take his seat March 4, 
1855, and as the journey to Washington consumed 
fully a month by steamer route and the Isthmus, to 



84 LIFE OF DAVID S. TERRY. 

put off the election until the session of 1855 would 
be to run the risk of repeating the experience of 1851, 
when no senator was elected, and thus to have the 
State go without one of the two senators at an im- 
portant session; or, it might happen that the election 
of the ensuing session, if held, would be too late to 
enable the senator to reach Washington in time to 
take his seat on the day of meeting. This was, sub- 
stantially, the argument set forth on the Broderick 
side for the election in 1854. 

" The allied forces opposed to the scheme obtained 
information of the proposed ' Address to the People,* 
and immediately took time by the forelock by pre- 
paring an address on behalf of precedent and usage, 
to arouse the people to the importance of the matter, 
and cause popular denunciation of the revolutionary 
project. The anti-Broderick and ^nti-election ad- 
dress, was first printed and earliest circulated through- 
out the State. It appeared on a Saturday during 
February, and on the succeeding Monday the Brod- 
erick address was published. As signer to each — 
the sign manual in each case genuine — appeared the 
name of one of the senators from Placer County, who 
had been nominated and elected as an anti-Bigler, 
anti-Broderick man, the Hon. Charles A. Tuttle. It 
was a queer position to occupy, a straddle as figura- 
tively painful as was that in which the blundering 
Briton placed ' Britannia, seated upon her trident.' 
But Mr. Tuttle was not the only member of that 
Legislature who either ' saw the right and pursued 
it, too, or condemned the wrong and yet the wrong 
pursued.' The secret history of that contest, which 



CALIFORNIA POLITICS. 85 

cannot yet be given to the public, would itself reveal 
enough to warrant the postulate of Sir Robert Wal- 
pole, that 'all men have their price.' Yet it would 
be invidious to discriminate in these sketches to such 
purpose as to resurrect and present the facts, and 
make exposure on either side. 

" But there were events which cannot be suppressed 
or disregarded with propriety, in order to give a fair 
and clear understanding of the whole case. Among 
these was the * Peck and Palmer bribery ' affair. 
Elisha T. Peck was the senator from Butte County. 
He had been a Whig, but was so little of a party man, 
and was considered so honest by his fellow-citizens, 
among whom he was generally known as a merchant 
of excellent character, that he was elected by Demo- 
cratic votes. There was nothing of the politician in 
his composition; nothing of the party manager or 
leader. He was simply an honest, truthful, modest, 
candid, straightforward man of fair average intelli- 
gence and good sense, in whose even make-up there 
was neither the sharp, salient qualities which distin- 
guish' men above their fellows, nor the common clay 
which is moulded by any. who presume upon confiding 
intimacy to perv>Tt the friendly relation into designing 
mastery; and he was as artless as he was sincere in 
his attachments. As between the several aspirants 
for the senatorship, he really had no decided choice. 
He was a Northern man, and, therefore, his sympa- 
thies were with those from his section. As a mer- 
chant, he knew Henry B. Truett better than any 
other of the active managers in the great contest of 
the session, and to him he had confided whatever 



86 LIFE OF DAVID S. TERRY. 

views he entertained in relation to it. And as Mr. 
Truett was the special champion of General McDou- 
gall, and was strenuously battling against Broderick 
and his scheme to.forv:e the election of a senator that 
session, Mr. Peck quite naturally acted in conformity 
with Mr. Truett's persuasion and counsel. As he 
was known to all engaged in the contest as a man of 
not much firmness, some who were less intimate with 
him conjectured that therefore he must be of weak 
and yielding nature, and thence sprung the occasion 
for the Peck-Palmer bribery matter. 

"Joseph C. Palmer was the senior partner of the 
banking house of Palmer, Cook & Co., at that time 
one of the widest-known and oldest-established bank- 
ing institutions in San Francisco. Palmer was him- 
self the head and life of the house — an uncommonly 
sharp, shrewd, bold, adventurous man, who judged 
men at a glance, and rarely misjudged any. No one 
in the community had better information of the hidden 
springs which move and mould men and events, or 
were better qualified to ably utilize the information 
to such purpose as he wished or willed. With rare 
insight he grasped the situation at a glance; and once 
the master of it, he had to be indeed a sagacious and 
powerful rival or adversary that could dispossess or 
outmaneuver him. Mr. Palmer was a firm believer 
in the Walpolian doctrine concerning men — in public 
as well as private life — a useful friend, a powerful 
enemy. On the morning of Thursday, January 19, 
at the earliest opportunity. Senator Peck arose in his 
place and proceeded to speak on a privileged ques- 
tion. It was to the effect that, on the ^ih of that 



CALIFORNIA POLITICS. 87 

month, while on the passage from San Francisco to 
Benicia, on the steamboat Helen Hensley, he was 
introduced to Mr. Palmer by A. A. Selover, and that 
in a private conversation with Mr. Palmer, a short 
time after, that gentleman had offered him $5,000 in 
gold coin to vote, first, for bringing on the election 
of senator, and, next, for Mr. Broderick for senator. 
To this offer he had replied, *i will not sell my vote; 
I cannot be bought.' 

" First to take official notice of the charge of Sen- 
ator Peck was Senator Tuttle, who immediately moved 
the reference of the subject matter to a special com- 
mittee of five for investigation, but this was rejected 
to give place to the only proper motion under the 
circumstances, that of Senator Hager, to have the 
charge investigated at the bar of the Senate. On 
motion of Senator Sprague, the investigation was set 
for January 24. On that day Mr. Palmer appeared 
before the bar of the Senate with General Williams, 
Stephen j. Field (now associate justice of the United 
States Supreme Court), and Hall McAllister, as 
counsel. Colonel Ed. D. Baker (afterward senator 
from Oregon) was counsel for Mr. Peck. Three 
stenographic reporters were appointed to officially 
report the case, the testimony and arguments to be 
reported in full. Senator Peck stated his interview 
with Mr. Palmer. The wimesses for the defense 
were Mr. Palmer himself, A. A. Selover, Will Hicks 
Graham, Thomas McGuire, and others of less note. 
Judge W. T. Barbour, of Yuba, Judge Winfield Scott 
Sherwood, W. H. Taylor, and others of more or less 
prominence, were the witnesses on Peck's side. The 



88 LIFE OF DAVID S. TERRY. 

testimony was throughout conflicting, and some of it 
evidently 'cooked.' 

** The case lasted from the 24th of January until 
the 3d of February. By arrangement General Wil- 
liams opened, Colonel Baker replied, and General 
Williams then made ihe closing speech. General 
Williams consumed two days in his argument; Col- 
onel Baker spoke about four hours. The defense 
had shown wonderful vigor and skill in the exam- 
ination. Colonel Baker had not taken a note in 
writing all the time, and he seemed indifferent as 
to the evidence. He was then comparatively little 
known in the State, except by those from Illinois and 
the West, and the Broderick men, who had witnessed 
the investigation and observed the array of eminent 
counsel in Palmer's behalf, watched the masterly 
management of that side, and noted the conspicuous 
ability of General Williams in worrying the accusing 
senator into all manner of entanglements, offensively 
ridiculed the folly and ill-judgment of the anti-Brod- 
erick managers in having employed only one as coun- 
sel, and that one of so little apparent effectiveness, 
and in this view they were largely backed by many 
of their adversaries during the taking of the testimony. 

"Colonel Baker was not the choice of Major Ham- 
mond, nor of the other manager for Senator Gwin, 
with whom he generally acted. He was selected by 
Mr. Truett, whose enthusiasm and protestations and 
appeals finally led his confrere to yield his own pref- 
erence to his; and thus Colonel Baker became sole 
counsel employed on that side of the case. His view 
of the matter was that, as an investigation, either to 



CALIFORNIA POLITICS. 89 

Vindicate Peck or to cast odium on Palmer, it would 
be vain and futile; that only in its partisan or political 
aspect, to produce popular prejudice against Broderick 
and his bold scheme, and thus to prevail with the 
more impressible of the members who were support- 
ing the s:heme, so as to work its defeat, could the 
investigation be of effect; and, hence, it must be in 
the manner of placing the case before the people, 
more than in the matter, that the popular interest 
would be centered, the public sentiment influenced. 
He assumed, as a matter of course, from the action 
of the Senate in employing three stenographic re- 
porters, that not only would the testimony be printed 
in full in the journals of the Senate, but also would 
the arguments of counsel be fully presented therein. 
In keeping with this view, he had devoted no more 
attention to the mass of testimony and to the details 
of the case than was essential to his own purpose in 
the argument, and he intended that that should be 
more in the style of a flaming, rousing, impressive, 
convincing partisan speech, to make popular capital 
for the side he represented, than in the line of a legal 
argument or elaborate appeal to the senators, sitting, 
like so many jurors, with their minds already made 
up beyond the power of logic, law, or oratory, to 
sway or affect them, as they were. But General Wil- 
liams manifestly regarded the opportunity as one to 
exhibit his legal profundity, as well as his forensic 
eloquence, and, as such, made the most of it. The 
Senate Chamber was densely packed with spectators 
to witness the intellectual battle between the pitted 
giants — the one, the embodiment of law, close rea- 



90 LIFE OF DAVID S. TERRV. 

soiling, absolute fact, infinitesimal distinctions, barely 
visible shadings, and inexorable judgment against 
every instinct of nature and impulse of sympathy; the 
other, the impersonation of that expanse and that 
splendor of genius which makes of speech the lumi- 
nous matter to set aglow the mind, and then, with its 
resistless flow in grander form, moves on the subjected 
mass to its own willed conclusion. 

" The speeches of General Williams were all law, 
all fact, all argument, based upon the testimony. The 
argument of Colonel Baker was a brilliant, powerful, 
surpassing speech, magnificent in style, grand in its 
conception; here fiowing with the grace of a charming 
epic, there thundering with the stupendous force of 
the avalanche; now swaying all with its majestic elo- 
quence, anon lacerating the defense with its fierce 
invective, or torturing with its merciless cautery. He 
depicted Broderick as the lion, Selover as the sub- 
servient jackal, and Palmer's fond embrace was pic- 
tured as the golden clasp with the sting of death to 
the honor of its encompassed victim. Rarely was the 
'Gray Eagle' more eloquent — never was he more 
caustic. And so ulteriorly effective was his speech 
that, when he next had a political case to champion 
in the interest of warring Democrats, it was as the 
advocate of Broderick he appeared. 

" But the Peck and Palmer case utterly failed of 
effect at that time, in practical form, either before the 
Senate upon the grand contest which occasioned it. 
Or with the people. Its termination was as ludicrous 
as Jo Baldwin's characterization of the noted case in 
which he said 'the law was given to the North and 



CALIFORNIA POLITICS. 9 1 

the nigger to the South.' The Senate verdict was 
given, in double-barreled, back-action, contradictory 
form and sense, recorded, to this effect: (i) That the 
statement of Senator Peck had not been sustained; 
(2) that the decision of the Senate did not in any 
degree reflect upon the honor and dignity of Mr. 
Peck. In other words, (i) that Senator Peck did 
not tell the truth; (2) that it did not in any degree 
reflect upon the honor and dignity of Mr. Peck, or 
any other senator, not to tell the truth. David Ma- 
honey was the only senator who voted ' No' on the 
last proposition or resolution. 

"On the same day, Friday, February 3, that the 
Senate gave its extraordinary verdict in the Peck and 
Palmer bribery case, the Assembly, upon motion of 
Ben Myres, of Placer (Broderick man), tabled the 
bill to provide for the election of United States senator 
at that session, by a vote of 44 to 32. The vote did 
not correctly represent the sentiment of the House on 
that question, however, nor was it the policy of Brod- 
erick's opponents to then reveal their actual strength 
in that body, although they were in the minority. 
The bill was tabled by Broderick's own supporters 
in the House, merely to let it await the action of the 
Senate, and, if favorable, then immediately to take it 
from the table and pass it." 

The Leaislature met at Benicia for the last time 
on the 25th of February, and on March i, 1854, it 
assembled in the courthouse at Sacramento. It 
proved the doom of Broderick's bill to force the 
senatorial election. It passed the Assembly March 
6, by a vote of 41 to 38. In the Senate the bill was 



92 LIFE OF DAVID S. TERRY. 

called up the next day, and was passed by the casting 
vote of the presiding officer, Sam Purdy. Senator 
Jacob Grewell, of Santa Clara, who had been opposed 
to the bill, had voted for it, and, although he had 
been considered a man of strict integrity heretofore, 
a few now realized that he had been tampered with, 
and that night they prepared their plans to undo all 
that the Broderick workers had done in view of a 
reconsideration of the vote. The next day Grewell 
arose in his seat and moved to reconsider the vote, 
and the final vote was 14 for to 19 against the bill, 
Catlin, of Sacramento, and Sprague, of Shasta, having 
changed their minds. It was a heavy blow to Brod- 
erick, but he was neither killed nor paralyzed. 

At the conventions of 1855 — for the Democratic 
party was now hopelessly divided — two tickets were 
placed in the field, and it was then that the other 
elements combined and placed in the field what was 
known as the "Know-Nothing" ticket. Having 
given a fair and modest estimate of the character of 
Broderick, provided by a contemporary and one of 
his friends, the reader's attention is called briefly to 
the political character of Judge Terry. 



CHAPTER XII. 

The Campaign of 1855 — Terry as an Advocate of 
Reform in Politics — Success of the Know- 
NoTHiNG Ticket. 

While the questionable proceedings that have just 
been related were in progress, David S. Terry was 
attentively engaged in the practice of his profession 
at Stockton. Being strong in his prejudices and de- 
termined in his purposes, while he inherited a large 
share of ambition, he was wedded by nature to a 
more generous share of uprightness, and he hoped 
to merit distinction rather than delve into the depths 
of political debasement and resort to unworthy methods 
necessary to successfully combat professional tricksters 
in order to accomplish any purpose, much less that of 
securing an office. He was a positive man, even to 
rashness, and such characters never succeed in the 
political arena. The California methods at that time 
were based upon intrigue, as the natural result of a 
personal warlare between the two champions contend- 
ing for the United States Senate, and it was not, "Are 
you a Democrat?" "Arc you a Whig.'*" "Are you a 
Freesoiler?" or "Are you a Know-Nothing .-*" It was, 
"Are you a Gwin man?" or "Are you a Broderick mani*" 
Terry took no active part in the conflict. No particu- 
lar fame or notoriety drew him from his business, al- 
though he was an interested spectator, opposed to the 
7 (93) 



94 t^IFE OF DAVID S. TERRY. 

asprations of Gwin, and destined to make his mark 
for good or ill at no distant day. 

His special prominence at the bar barely pointed to 
him as one whose name would figure conspicuously 
and eminently in the future history of the State. His 
ability and integrity were unquestioned, and his great 
force of character was acknowledged and these virtues 
could not be ignored in the labors of the " Opposition" 
Convention which assembled at Sacramento to make 
up a ticket. This movement was watched with deep 
interest by Broderick, who had no object but a per- 
sonal one to be gratified. He was simply opposed to 
the "chivalry," as that element was opposed :o him, 
but he was absolutely powerless in his attempts to 
manipulate and control the Know-Nothings. They 
guarded every approach to their councils by outsiders, 
and a more restless man never nursed ambition. The 
men who took their seats in that convention were of 
the most respectable and prominent clas<, which greatly 
surprised the lookers-on who were present out of mere 
curiosity. Whigs, Democrats, Republicans and Free- 
soilers were mingled there in harmony, presenting a 
sort of political millennium, but sending a chill through 
the marrow of the Democratic factions that were qu ir- 
reling over the spoils and for power at the expense of 
decency. 

There was a division of sentiment in this convention 
among ihe delegates as to who should head the ticket. 
A very large and respectable portion from the country, 
led by ex-Governor Foote, of Mississippi, favored the 
nomination of David S, Terry for Governor, and had 
he desired the position on the ticket he could have had 



CALIFORNIA POLITICS. 95 

it, but he was no manipulator. His name was sub- 
mitieJ, however, but there were elements at work to 
give him a place where his professional talents and his 
abilities would be more usefully applied, and the friends 
of J Neely Johnson were aggressive. It was Terry's 
personal preference to become a candidate for the Su- 
preme Bench. His reputation had been made at the 
bar, and he was the recognized leader among all the 
members of the legal profession. Acceding to his de- 
sires he received the nomination to fill the unexpired 
term of Chief Justice Alexander Wells. 

It would probably be erroneous to assert that David 
S. Terry was not very anxious to be elected afier his 
name had been placed upon the ticket for such an hon- 
orable and important office. There are but few men, 
and they not in the list of professionals, who have no 
political aspirations. He was a man of flesh, and the 
flesh is weak in the presence of an invitation to hon- 
orable distinction. The prospects, however, were not 
very flattering, and while he submitted to the ordeal, 
he had but little hopes of success. The party to which 
he was allied had no perceptible organization in the 
State. Its work was done in secret councils, but its 
allies, who distrusted the factions into which the Demo- 
cratic party had fallen, on account of the bitter feud 
existing between the two prominent and ambitio. s 
leaders, seemed determined to defeat them in their fac- 
tious warfare. Terry did not make any special plea 
before the people for the office, but he made a canvass 
for the ticket in connection with other candidates. 
The office of supreme justice was one which he con- 
sidered of too sacred a character to be dragged in the 



96 LIFE OF DAVID S. TERRY. 

mire and filth of partisan wrangling, and, above all, he 
made no concessions to friends or foes that might be 
construed into obligations on his part. Should he be 
elected he would be free from any pledges and inde- 
pendent of any special favors. His associates on the 
ticket were all men of excellent repute, and he would 
not be alone should defeat follow the battle at the 
ballot box. The prominent men who canvassed the 
State for the Know-Nothing party ticket were: Ex- 
Senator and ex-Governor Foote, of Mississippi; Col- 
onel E. C. Marshall, James Coffroth, and Henry Crabb. 
When the election came, in September, the Know- 
Nothings swept the State. It was a political sur- 
prise, and as much so to David S. Terry, who was 
not a politician of keen perception, as it was to either 
Broderick or Gwin. This sudden and unexpected 
elevation to a position to which he had fondly as- 
pired, but came to him as an accident, was very 
gratifying, and no doubt fed his vanity somewhat, 
although, aside from his well-known scruples as to 
his integrity and honor, he was absolutely without 
either pride or ostentation. He took his seat in Oc- 
tober, 1855, fully imbued with the dignity and re- 
sponsibilities of the position. 



CHAPTER XIII. 

Terry Opposed to Vigilance Committee — His Visit 
TO San Francisco in the Interests of Law 
AND Order — Exciting Scenes — He Resists 
the Authority of the Vigilantes and Stabs 
Hopkins in a Street Fight. 

Probably one of the most exciting and memorable 
events that ever occurred in a civihzed country took 
place during the first year in which Judge Terry oc- 
cupied a seat on the Supreme Bench. The chmax 
of fraud at the ballot box and in the courts of San 
Francisco was reached. The people became aroused 
at the magnitude of evils that were undermining both 
the social and political fabric, and the organization of 
criminals existed as well throughout the State. The 
election of 1855 was so glaringly corrupt, and the 
lives of respectable citizens became so insecure, that 
the business men, and all good citizens, resolved to 
organize a Vigilance Committee, for public safety and 
security. At the head of this organization was W. T. 
Coleman, a man in whom all had implicit confidence 
for integrity and good judgment. The leading in- 
cident that led to the organization was the frauds 
upon the ballot box committed by stuffers under the 
manipulations of a man named Casey, in his ambition 
for a seat in the City Council. He was a politician 

(97) 



98 LIFE OF DAVID S. TERRY. 

of the most desperate character. The frauds having 
been discovered and traced directly to him and those 
of his kind, the Evening Bulletin, edited by James 
King of William, a gentleman from Virginia, who 
had exhibited a character for honesty and ability, and 
a great zeal for good government, in the conduct of 
the newspaper, openly and vigorously denounced the 
frauds and arraigned Casey as a ballot-box stuffer and 
swindler, in scathing language. 

His paper produced a profound sensation among 
the business men who had refrained from mingling 
and taking an active part in the political strife, but 
who realized the truth of the charges. The next 
morning, without a word of warning, Casey entered 
the editorial rooms of the Bulletin office and de- 
manded of King if he had written the article attack- 
ing him, and, having received a prompt answer in the 
affirmative, he drew a pistol and shot him dead. 

Shortly after the organization of the committee, and 
before the hanging of Casey, Broderick and Jo Mc- 
Kibben were " invited " and escorted to the com- 
mittee rooms, by the officers of the committee, and 
the extraordinary double event created much curiosity, 
or excited great consternation, in the circles of their 
respective friends and in the community generally. 
But the two soon afterwards, the same evening, re- 
turned to their accustomed places of resort, and the 
wonder and alarm thereupon subsided. They had 
been summoned simply to give evidence in respect 
to the shooting of King by Casey, and as to Casey's 
character. But the arrest of some, and the notifica- 
tion of arrest, unless flight should make it unneces- 



CALIFORNIA POLITICS, 99 

sary, of others, mostly the supporters or friends of 
Broderick, were circumstances which, too plainly to 
be misinterpreted, signified that his followers mainly 
were to be proscribed and pursued. 

Yet Dr. Gwin and General McDougall and Major 
Hammond were as stoutly and strenuously opposed 
to the usurpation and lawless rule of the Vigilance 
Committee as Mr. Broderick. And there were sev- 
eral members of the executive committee of the Vig- 
ilance Committee who had engaged or participated 
in, directly and indirectly, the grossly irregular prac- 
tices of electioneering, by what was termed the "ballot- 
box stuffing " process, to secure the election of them- 
selves or their favorites for office, as deeply and as 
criminally as had any of the persons the committee 
had arrested or expatriated. The effect of these ar- 
rests and banishments was, however, such as to impel 
a round number of Mr. Broderick's most active local 
supporters and " workers " to leave the city and take 
refuge in interior portions of the State, where the 
popular sentiment was strong against the committee. 
And at last Mr. Broderick himself and Colonel E. D. 
Baker found it advisable also to withdraw from San 
Francisco, and seek the more friendly association of 
their respective admirers, champions, and Anti-Vigi- 
lance sympathizers in the interior counties. 

Casey and a man named Cora, an Italian of unsa- 
vory reputation, who had been imprisoned for some 
unlawful act, and was then in jail, were tried by the 
Vigilantes and hung to a beam in front of the Vigi- 
lante's headquarters. The committee was organized 
with an Executive Committee of thirty-six members, 



lOO LIFE OF DAVID S. TERRY. 

and a board of control consisting of one hundred, be- 
fore whom all cases were tried. They dealt out pun- 
ishment to all murderers, thieves and lawless characters, 
banishing those who were known to be of bad repute, 
but who had not committed acts of violence in the 
extreme. 

The State authorities dreaded the existence of this 
organization, but were too weak and impotent to take 
any decided action to allay the excitement. The Vigi- 
lantes had the sympathies of a majority of the people 
of the State, and had the State administration, instead 
of opposing the movement, united with it in securing 
good government, the proceedings would have ended 
without the extraordinary incidents which occurred 
during the existence of the organization. The State 
militia, under the direction of Volney E. Howard, who 
succeeded General Wool in command, undertook to 
ship arms for the State barracks from Benicia to San 
Francisco for the purpose of attacking the headquar- 
ters of the Vigilantes, who were strongly fortified in a 
building, which was named by its enemies "FortGun- 
nybags" in derision. Learning of this movement (for 
they had spies in every nook and corner of the State), 
they sent a detail of three men up the bay under the 
comniimd of one of their police officers, who captured 
the vessel and arms at a point between San Frar.cisco 
and Mare Island in charge of Lieutenant Phillips, of 
the State militia, and others. 

Judge Terry was opposed to the Vigilance Com- 
mittee. He had been in conference with Governor 
Johnson, General Wool, General Sherman and Volney 
E. Howard, urging the State government to exercise 



CALIFORNIA POLITICS. lOI 

Its constitutional authority to suppress the unlawful 
proceedings. The Governor had issued a proclamation 
commanding the committee to disperse and bring their 
complaints before the lawfully-constituted tribunals of 
the State, and the committee issued an address to the 
public, stating that — 

"Power emanated from the people, and laws from 
representatives honestly elected, faithful officers, hon- 
estly chosen, must execute them. When the laws 
failed of execution it was the people's right to resume 
the power they had delegated, or which had been 
usurped. They did not resume all the powers con- 
fided to the executive or legal officers, but only in such 
departments as allowed justice to be thwarted in the 
regulation of social order and the rights of the people 
in a political sense. They had taken an oath and 
bound themselves, the one to the other, to do and per- 
form every just and lawful act for the maintenance of 
law and order, and to sustain the laws when faithfully 
and properly administered, but were determined that 
no thief, burglar, incendiary, assassin, ballot-box stuffer, 
or any other disturber of the p^ace, should escape 
punishment, either by quibbles of law, carelessness or 
corruption of officers of the peace, or a laxity of those 
who pretended to administer justice." 

Judge Terry's position was one of the most delicate 
under the circumstances. He had taken an oath to 
support the Constitution of the State, and it was his 
duty to construe the statutes and uphold the dignity 
of the commonwealth. He was, in the strictest sense, 
a martinet on the bench. Imbued with that high 
regard for honor and principle which lends to the per- 



I02 LIFE OF DAVID S. TERRY. 

formance of duty a commendable dignity and patriotic 
devotion, he writhed under the pecuh'ar conditions which 
had obtained in San Francisco. His whole being was 
aroused when he contemplated the existence of a self- 
constituted tribunal usurping the judicial prerogatives, 
of which he was a prominent part. It stung him to 
the quick when that "modern Areopagus," as he 
termed the Vigi ance Committee, treated a writ oi ha- 
beas corpus with silent contempt, which he had issued 
for the release of one Billy Mulligan, who was a pris- 
oner in the hands of the Vigilantes. 

Billy Mulligan had been a deputy sheriff, and was 
found guilty of stuffing ballot boxes. The commit- 
tee held him until they could determine what should 
be done. The sheriff, in attempting to serve the writ, 
had not the password and could not gain admittance 
into the fort, hence the writ was never served. 

It was in the presence of such circumstances that 
Judge Terry concluded to go to San Francisco, hoping 
that his presence and counsel might be exercised to 
allay the excitement, and bring order out of chaos. 
Had he been a politician he would not have done so. 
His judicial mind did not grasp the situation correctly, 
but he was infatuated with a desire to lend his presence 
and the influence of his high position as a representa- 
tive of the judicial head of the State government to 
adjust the difficulties. To charge that he went with 
any other than the most pacific purpose wou'd be 
counter to the estimate in which his character was held 
by his most inveterate enemies. 

Hon. Henry Edgerton, who was one of the bitterest 
opponents he had, and a devoted follower of the Brod- 



CALIFORNIA POLITICS. I03 

erick and Douglas wing of the democracy, when the 
fiercest conflict was raging, publicly declared that "it 
is my deliberate opinion that it would be an impossi- 
bility for David S. Terry to do an act of dishonor." 

On the 20th of June, 1856, Judge Terry went to 
San Francisco, and instead of visiting and conferring 
with the Executive Committee of the Vigilantes, he 
sought his more immediate political friends who were 
enemies of the committee. He went to the office of 
Naval Agent Dr. Ashe, located in rooms over Palmer, 
Cook & Co.'s banking house, corner of Washington 
and Kearny Streets, where several gentlemen were 
congregated. After conferring with these gentlemen 
and understanding the situation of affairs, and that his 
services would not be acceptable, as was represented 
to him by those who understood the vigorous policy 
pursued by the Vigilantes, he concluded to return to 
Benicia on the 4 o'clock boat, and made his arrange- 
ments accordingly. 

Reuben Malloney, who had been captured with the 
arms and schooner on the bay, and who had been 
granted his liberty, was wanted as a witness before the 
committee. He failed to appear when wanted, and 
the committee detailed Sterling A. Hopkins, one of 
their police officers, and two men to arrest Malloney 
and bring him before them as a witness. At this 
juncture Terry was with his friends, and had in his 
hand a musket belonging to the State armory, .which 
he was examining. Hopkins and his men appeared 
and attempted to arrest Malloney, who had sought ref- 
uge in the room, and produced a warrant issued bv 
the officers of the committee. When he read it and 



104 LIFE OF DAVID S. TERRY. 

attempted to arrest Malloney, Judge Terry promptly 
interfered, and informed Hopkins who he was, stating^ 
that no illegally-constituted tribunal should exercise 
such unlawful power in his presence. Naval Agent 
Ashe, Ham. Bowie, Martin Reese and Hayes were 
present, and M.alloney asked protection of the State 
and Federal authorities. Being thus warned, which 
was construed as a defiance, Hopkins and his posse 
immediately returned for re-inforcements. When he 
reappeared with his force under arms and fully equipped 
for the fray, he saw Dr. Ashe, who was also a captain 
of the State militia, Judge Terry, Ham. Bowie and 
jNIalloney, armed with guns, turning the corner of 
Washington and Kearny Streets, on their way to the 
armory, which was located on the corner of Jackson 
and Dupont Streets. 

Just before reaching the armory, Hopkins came 
upon them with his men, and, in attempting to arrest 
Malloney, was about to pass Judge Terry, who was 
in the rear. Terry presented his gun and attempted 
to stop him, and a scuffle ensued, in which Hopkins 
made an effort to secure the gun. At this instant a 
pistol was accidentally fired, and, as Hopkins wrenched 
the gun from Terry, thinking there was a street fight, 
Terry drew his bowie knife, and said, " D — n you, 
if it is kill, take that," and plunged it into Hopkins' 
neck its full length, severing the carotid artery, and 
producing a serious, and, as was then supposed, a fatal 
wound. Hopkins retreated down the street, and the 
law and order party sought refuge in the armory. 



CHAPTER XIV. 

Vigilantes in Arms — Surrender of the Barracks 
TO THE Vigilantes — Judge Terry a Prisoner 
AT Fort Gunnybags. 

A mounted courier was dispatched to the committee 
rooms with the dread intelligence. The mounted 
battalion, in an incredibly short space of time, were 
on duty, and at once swept through the streets, and 
surrounded the office of the naval agent and armory, 
where Terry and his party had taken refuge. Com- 
pany after company emerged from the committee 
rooms under arms, and were marched off to their 
various destinations. In less than an hour four thou- 
sand men were under arms, and the streets were 
glistening with bright bayonets, and, before the "law 
and order' party could realize their condition, their 
armories were completely surrounded. By 4 o'clock 
eleven hundred armed men had surrounded the ar- 
mory where Terry and his friends were, and every 
approach to the building had been cut off A dele- 
gation from the Executive Committee, consisting of 
Messrs. Truett, Tillinghast, Smiley, Vail, and Demp- 
ster, arrived about 4 o'clock. 

Dr. Ashe, who had temporary command of the 

armory, appeared at the window with a message from 

the refugees, and asked for a conference as to the 

terms of capitulation. The Vigilantes demanded, first 

( 105 ) 



t 

I06 LIFE OF DAVID S. TERRV. 

of all, the surrender of Judge Terry and Reuben 
Malloney. At this instant Judge Terry appeared in 
person at the window, and attracted the attention of 
Colonel Olney, of the Vigilantes. He did not know 
but that Hopkins was dead, and, if dead, he knew 
what that meant. He began to realize the situation 
produced by his irritable spirit, and he addressed his 
friends, saying: "This is very unfortunate, but you 
shall not peril your lives for me. It is I they want. 
I will surrender to them," 

"There is nothing else to do," replied Ashe, "but 
first let us try to escape the fury of this mob." While 
they were thus consulting, Chief Marshal Doane, of 
the Vigilance Committee, made a demand for the 
complete and absolute surrender of the armory and 
all persons therein, and the following correspondence 

look place: — 

San Francisco, June 21, 1856. 

GenfiCme^i of the Vigilance Committee — 

If the Executive Committee will give us protection from vio- 
lence, we will agree to surrender. 

R. P. Ashe, Capt. Co. A., 

J. Martin Reese, ist Lieut. Co. B. 

The committee replied as follows: — 

CoR. DupoNT AND Jackson Sts., S. F., ) 

June 21, 1856. j 

R. P. Ashe and J. Martin Reese, Commanding — 

Gentlemen: We have to say, in reply to your communication 
of th s date, that, if Judge Terry, R. S. Maloney, and John B. 
Phillips, together with the arms and ammunition in your pos- 
session, be surrendered to the charge of our body, we will give 
you and the building in which you now are protection from vio- 
lence. Yours, by order of the Executive Committee, of which 
we are members, Nos. 12, 13, 50, 645, 332, 



CALIFORNIA POLITICS. lOJ 

An answer being required in fifteen minutes, it being now ten 
minutes to four. 

To which answer was made: — 

San Francisco, June 21, 1856. 
Gentlemen of the Vigilance Committee — 

If you will agree to see that Judge Terry and Mr. Malloney 
will also be protec.ed, while in your hands, from violence from 
persons outside of your organization, then we will agree to sur- 
render on the terms of your note just received. 

Respectfully, R. P. Ashe, Capt. Co. A., 

J. Martin Reese, ist Lieut. Co. B. 
P. S. — Lieutenant Phillips is not with us. 

This was answered as follows: — 

San Francisco, June 21, 1856. 
To R. P. Ashe and J. Martin Reese ^ Commanding — 

We agree to protect Judge Terry and S. B. Malloney from 
violence from parties outside of our organization, as proposed, 
and beg leave to remind you that the time proposed in our first 
note has already expired. 

By order of the Executive Committee, of which we are mem- 
bers, Nos. 12, 13, 50, 332, 645. 

The surrender was complete, and, having no arms 
or armory, the organization was useless, and the offi- 
cers and militia resigned. Terry was taken to the 
headquarters of the Vigilantes, and imprisoned, to 
await the result of the fearful wound inflicted upon 
Hopkins with the knife. 



CHAPTER XV. 

Judge Terry's Views as a Defender of the Law — 
His Unyielding Devotion to Constitutional 
Supremacy — Extraordinary Excitement— Cor- 
respondence. 

Before presenting the official and other matters of 
correspondence, and consultations which took place 
in reference to the release of Judge Terry, a few words, 
which may serve to more clearly define the condition 
of affairs at this juncture, may be profitably supple- 
mented. The committee was dealing with the crim- 
inal elements exclusively. Its province was not alone 
in the city of San Francisco, and yet that city was 
the harbor of refuge for the main actors in the drama. 
The newspapers, with the exception of one in San 
Francisco, and the people of the State as a rule, were 
in sympathy with the actions of the Vigilance Com- 
mittee. One prominent leader of a band of despera- 
does, whose operations were in the mountains and 
foothills, in robbing stages and stealing horses, kept 
posted in regard to the work of the committee, and, 
after most of the work had been done, the Bulletin 
gave a full list of the persons hung, transported, and 
otherwise dealt with, and, when this desperado read 
them, he remarked: " Not one innocent man has been 
punished. Every one of them were criminals." 

(io8) 



TERRY AND THE VIGILANTES. IO9 

Up to the moment when Judge Terry yielded to 
his impetuous nature, which was his most inveterate 
foe, he was as safe as any man in the State. He was 
not a criminal until that hour, and the encomiums that 
had been spent upon his name as an honest and in- 
corruptible judge should have built about him an im- 
pregnable fortress, and caused him to rise superior 
to the questionable acts of outlawry that surrounded 
him. If he considered his presence as a supreme 
judge so august that criminals would be safe within 
it, he arrogated to his office and rank a greater in- 
fluence than human patience under such trying cir- 
cumstances would recognize. He was a strong South- 
ern man in his prejudices, and was zealous in the 
support and defense of the State government of which 
he was a part; and, while he defended the Governor 
in his operations, and advised with him in his troubles, 
he was one of the few who had been true to his honor 
and dignity in the performance of duty. He agreed 
that politicians, judges, and juries had been corrupt, 
but he was just as sure that the men who established 
and were managing the Vigilance Committee had so 
persistently shirked jury duty and their duties at the 
polls that they had thereby become parties to the 
crimes which had caused the troubles they were then 
seeking to prevent. 

JuJge Terry was arrested and imprisoned on the 
twenty-first day of June, 1856, and, from that day until 
the day of his release, strenuous efforts were made by 
his friends to secure his release. The committee were 
troubled at his presence. The fate of Hopkins was 
trembling in the balance. Both parties secured the 



IIO LIFE OF DAVID S. TERRY, 

most expert medical aid to save him. The Executive 
Committee of the Vigilant s used every effort to pre- 
vent any violence which was threatened by the four 
thousand armed members who were demanding the 
life of Judge Terry, They had determined that no 
distinction should be made in dispensing justice. In 
their search for small fish of the criminal order they 
had caught a whale, and they were perplexed. His 
wife, who was beloved by all for her many virtues 
and her moral worth, was admitted to his cell, and 
around her at all times were gathered the most prom- 
inent of his ardc nt friends. 

Volney E. Howard, who, although the State militia 
had practically disbanded, still assumed the position 
of major general, overstepped the bounds of prudence 
by addressing a letter to the Executive Committee, 
in which he committed the error of manufacturing a 
story of the stabbing not in line with the facts. His 
letter was as follows: — 

Headquarters, San Francisco, ) 
June 21, 1856. j 

To IV. T. Coleman^ and others, styling themselves the Vigilance 
Committee — 

Gentlemen: I learn that a person named Hopkins, claiming 
to be under your authority, a short time since visited the room 
of Hon. David S. Terry, in this city, rushed upon him, and at- 
tempted to disarm him, and otherwise assaulted him. Judge 
Terry, in self-defense, was compelled to use a knife, with which 
he inflicted a severe, and perhaps a mortal, wound. From all 
the circumstances, as detailed to me, I have no doubt that, should 
Hopkins unfortunately die, it would be a case of justifiable homi- 
cide. 

I am informed that Judge Terry is now in the hands of the 
police, and that the house in which he is situated is surrounded 
by a large armed force under your orders. 



TERRY AND THE VIGILANTES. 1 I I 

I demand that the force be withdrawn, and that Judge Terrv 
be left in the custody of the officers of the law; and I pledge 
myself that he shall be held in safe custody to abide his trial and 
all legal proceedings. This is the only course which will avoid 
an immediate collision of arms involving the peace of the State. 

VoLNEY E. Howard, 
Major General 4th Div. Conimatiding, S. F. 

B. W. Leigh, 
Acting Aid-de- Camp. 

No attention was paid to this. The friends of 
Terry, after having exhausted their devices in order 
to secure his release, prevailed upon him to address 
the committee. He did not relish the idea, but finally 
did so, in the following language: — 

San Francisco, June 24, 1856. 
To the Executive Committee of Vigilance — 

Gentlemen: I desired to see Mr. Crittenden for the purpose, 
amongst other things, of requesting him to say to you, on my 
behalf, that I have a wife and child dependent on me for sup- 
port; that my personal affairs are complicated and involved, and, 
as I have never confided my business to others, it cannot be 
readily understood and settled except by mysef; that, if deprived 
of an opportunity of giving them my personal care, for say two 
weeks, I believe no agent or order could or would save anything 
for my family, whilst I would be able in the above time to settle 
with all creditors, and insure to them a modest competence. 

For the purpose of insuring to my wife and boy a support in 
case by your verdict they were deprived of my protection, and 
also of giving me an opportunity of vindicating my fair name, 
which is dearer far than life, I request that the charges be sub- 
mitted to a legal tribunal in this city. The judges of the criminal 
courts are here, I believe, allowed by you to be honest in this 
case. You, by your power and influence over Scanwell, could 
secure what you would consider an honest and intelligent jury; 
or, if you distrust Scanwell, I will agree that the jury may be 
summoned by a person named by yourselves, and for whose 
honesty you will vouch. I will interpose no delay except as 



tI2 " LIFE Of DAVlb S. T£RRV. 

above stated; will make no application for a change of venue or 
for bail, and will object to no juror because he is a member of 
your body or organization, for, although the present Vigilance 
Committee are naturally much incensed against me, yet I will 
be content, after a few days to give time for reflection, to submit 
my cause to a jury composed of honest men, though all may be 
members of the Vigilance Committee. 

I will further agree that, if death should ensue from the wound 
inflicted by me, I will at once resign my position, will make all 
the necessary arrangements, and, if acquitted, will at once leave 
the State, should you require it. 

I make this request solely for the reason that I do not wish to 
leave my family dependent on the charity of others. For myself, 
I have sufficient fortitude to endure without flinching any fate 
which providence may have in store for me. 

If you do not grant the above request, I suggest that as to 
some of the specifications against me transpiring years since and 
at a distance, the witnesses are not forthcoming at this instant, 
but are near by in San Joaquin County. I desire time as to 
those charges (say two days) in which to procure those wit- 
nesses, as well as the most respectable gentlemen in Stockton 
from all sections of the Union, to refute the aspersions upon my 
character. 

I submit the foregoing for your consideration. I am not per- 
sonally acquainted with any of you, but am informed that your 
body is composed of men of honor. If so, you desire only to 
do justice, and I think no injustice can be done by pursuing the 
course I have indicated. Respectfully, etc., 

D. S. Terry. 



CHAPTER XVI. 

Extraordinary Efforts to Secure Terry's Release 
— Commander Boutwell and Capta.in Farra- 
GUT — Terrv's Appeal to Boutwell — Boutwell 
to Farragut and the Latter's Patriotic Re- 
ply. 

The release or capture of Terry was the all-absorb- 
ing thought and the center of every movement. The 
wildest stories seemed to prevail as to the manner 
and mode of his release. Letters to the Viorilantes 
from all quarters came and were considered by the 
committee. Failing in securing a release by his per- 
sonal letter, he appealed to Boutwell. The Governor, 
J. Neely Johnson, addressed a strong appeal to C. B. 
Boutwell, commanding the United States ship John 
Adams, lying in the Bay of San Francisco. The 
letter recited the fact that David S. Terry was in the 
hands of a body of Vigilantes, and he believed his 
life to be in imminent peril from the lawless violence 
of said committee; that he was powerless to protect 
him from such threatened violence, 

"Wherefore," said the Governor, "in the name and 
by authority of the power vested in me as Governor 
of the State of California, I ask at your hands, and 
with the power and means under your command, the 
protection and security of said David S. Terry from 



I 14 LIFE OF DAVID S. TERRY. 

all violence or punishment by said committee or any 
other power, except such punishment as may be in- 
flicted on him in due course of law. 

"In testimony, etc., J. Neely Johnson." 

Terry finally concluded to make a patriotic appeal 
to Commander Boutwell, hoping to arouse his pride, 
not knowing that Boutwell's actions were subject to 
the orders of Captain D. G. Farragut, who was in 
command of the Pacific squadron at Mare Island. 
He addressed a letter to Boutwell as follows: — 

San Francisco, June 28, 1856. 

Sir: I desire to inform you that I am a native-born citizen of 
the United States, and one of the justices of the Supreme Court 
of the State of Cahfornia, and that, on the 21st day of June inst. 
I was seized with force and violence by an armed body of men 
styHng themselves the Vigilance Committee, and was conveyed 
by them to a fort which they have erected and formidably en- 
trtnched with cannon in the heart of the city of San Francisco, 
and that since that time I have been held a prisoner in close cus- 
tody, and guarded day and night by large bodies of armed men, 
with muskets and bayonets, by order of the said committee. I 
desire further to inform you that the said committee is a powerful 
organization of men, acting in open and armed rebellion against 
the lawful authorities of this State; that they have resisted by 
force the execution of the writ of habeas corpus, and have pub- 
licly declared through their organs that their will was the supreme 
law of the State. 

The government of the State has already made in effect lal 
efforts to quell this rebellion, and the traitors, emboldened by suc- 
cess, have already hung two men and banished a great many 
others, and some of their members now openly threaten to seize 
the forts and arsenals of the United States, as well as the ships 
of war in port, and secede from the Federal Union. 

During my imprisonment I have suffered the indignity of being 
handcuffed by these rebels, my friends are denied all access to me, 
and all kinds of terrorism are resorted to to compel me to resign 



TERRY AND THE VIGILANTES. I I 5 

my office. I desire further to inform you that said committee is 
now engaged in trying me as a criminal for attempting resistance 
to their authority, and also for an assault with intent to kill one 
of their men here, whilst I acted solely in self-defense of my own 
life against their assaults on the public streets, and that I am in 
hourly danger of suffering an ignominious death at the hands ol 
these traitors and assassins. 

In this emergency I invoke the protection of the flag of my 
country. I call on your prompt interference with all the powers 
at your disposal, to protect my life from all impending peril. Let 
me remind you of the conduct of the noble and gallant Ingraham, 
when the life and liberty of a man only claiming to be an Ameri- 
can citizen was concerned. From your high character I flatter 
myself that this appeal will receive your early and favorable con- 
sideration. 

I am, very respectfully, your obedient servant, 

David S. Terry, 
Justice of the Supreme Court of the State of Califortiia. 

Actinj; upon this, Commander Boutwell addressed 
the committee as follows: — 

United States Ship "John Adams," ") 
San Francisco. Cal. , June 28, 1856. ) 
Gentlemen: You are either in open rebellion against the laws 
of your country, and in a state of war, or you are an association 
of American citizens combined together for the purpose of redress- 
ing an evil, real or imaginary, under a suspension of the laws of 
California. If you occupy the position assigned to you by Judge 
Shattuck, one of your ablest judges, and one who sympathizes 
with those who wish to reform abuses under the law, I, as an 
officer of the United States, request that you will deal with Judge 
Terry as a jirisoner of war, and place him on board my ship. 
But if you desire to occupy the position of a body of citizens 
acting under a suspension of, or against the law of, California, 
you will, I think, on reflection, and from a desire to conform to 
the requirements of the Constitution of your country, from a due 
regard to justice, and, above all, from a desire to avoid the shed- 
ding of American blood, by American citizens, on American soil, 



1 1 6 Life of david s. terry. 

surrender Judge Terry to the lawful authority of the State. You, 
gentlemen, I doubt not, are familiar with the case of Kostza. If 
the action of Captain Ingraham in interfering to save the life of 
Kostza, who was not an American citizen, met the approbation of 
his country, how much more necessary it is for me to use the 
power at my command to save the life of a native-born American 
citizen, whose only offense is believed to be in his effort to carry 
out the law, obey the Governor's proclamation, and in defense of 
his own life. The attack of one of the Vigilance Committee, who, 
perhaps would have killed the judge if the judge had not wounded 
his adversary, was clearly without the sanction of law. 

Gentlemen of the committee, pause and reflect before you con- 
demn to death, in secret, an American citizen who is entitled to 
a public and impartial trial by a judge and jury recognized by the 
laws of his country. I trust you will appreciate my motives and 
consider my position, I most earnestly pray that some arrange- 
ment may be effected by which the peace and quietude may be 
restored to the excited community. 

I have the honor to be, etc. , 

E. B. BouTWELL, Commander. 
To the Executive Committee of Vigilance . 

To which he received the following reply: — ^ 

Executive Committee Chambers, ") 
San Francisco, June 28, 1856. j 
Dear Sir: Your communication under even date with this 
was received a short time since, and I am directed by the Execu- 
tive Committee to state to you that its contents will receive due 
consideration. 

I am, sir, respectfully, your obedient servant, 

"33 Secretary." 

Boutwell was deeply cut by the curt reply, and wrote 
a letter to the Governor, in which he said: "I am 
sorry to be compelled to inform you that the unanimity 
with which the people of San Francisco deprecate any 
interference on the part of the Federal government 



tERRY At^D tHE VIGILANTES. I I ^ 

with their affairs would, I think, were it to interfere, 
do much injury, endanger the life of Judge Terry, and 
delay the settlement of the unhappy controversy now 
existing between the State government and a large 
proportion of the citizens of the city of San Francisco. 
I understand that the condition of Mr. Hopkins is 
improving, and in a few days more he may be so far 
recovered as no longer to afford the Vigilance Com- 
mittee any excuse for keeping the judge in custody. 
If I could persuade the committ'^e to set 
Judge Terry at liberty I would be most happy to do 
so. If Hopkins dies, and the committee condemn 
him to death, I will make an effort to save his life in 
such a manner as not to be offensive to my fellow- 
citizens." 

When Boutwell reminded them of the first commu- 
nication, the committee replied: — 

We have submitted the whole correspondence to your superior 
officer. Captain D. G. Farragut. 

Shortly after this Boutwell received the following 
letter from Farragut: — 

Mare Island Navy Yard, July i, 1856. 
Dear Sir: I yesterday received a communication from the 
Vigilance Committee inclosing a correspondence between your- 
self and the committee in relation to the release of Judge Terry, 
and requesting my interposition. Although I agree with you in 
the opinions therein expressed in relation to constitutional points, 
I cannot agree that you have any right to interfere in this matter, 
and I so understood you to think when we parted. The Con- 
stitution requires, before an interference on the part of the gen- 
eral government, that the Legislature shall be convened, if pos- 
sible, and, if it cannot be convened, then upon the application 
of the executive. Now, I have seen no reason why the Legis- 



I I 8 LIFE OF DAVID S. TERRY. 

lature could not have been convened long since, yet it has not 
been done, nor has the Governor taken any step that I know of 
to call them together. 

In all cases within my knowledge the Government of the 
United States has been very careful not to interfere with the 
domestic troubles of the States, when they were strictly domestic, 
and no collision was made with the laws of the United States, 
and they have always been studious in avoiding, as much as 
possible, a collision with State's rights principles. The commen- 
tators, Kent and Story, agree that the fact of the reference to the 
President of the United States by the legislative and executive 
of the State is the great guarantee of State's rights. 

I feel no disposition to interfere with your command, but, so 
long as you are in waters of my command, it becomes my duty 
to restrain you from doing anything to augment the very great 
excitement in this distracted community until we receive instruc- 
tions from the government. All the facts of the case have been 
fully set before the government by both parties, and we must 
patiently await the result. 

Very respectfully, your obedient servant, 

D. G. Farragut, 
Commander Mare Island. 
Commander E. B. Boutwell, commanding United States ship 
''John Adams,* ^ California. 

P. S. — We must not act except in case of an overt act against 
the United States. D. G. Farragut. 



CHAPTER XVII. 

Hopkins Reported Dying — Terry Writes a Letter 
TO His Wife — Judge McAllister Refusks to 
Issue a Writ of Habeas Corpus — Important 
Action of Congress in Terry's Behalf, 

Under date of July 5, 1856, when it was reported 
that Hopkins was dying, Judge Terry, knowing the 
consequences of such a fatal result, wrote a letter to 
his wife, in which, among other things, he said: — 

B}' the death of my mother I was left, at the age of thirteen 
years, to my own guardianship, my only counselor, who had 
influence with me, being my brother, who was about two years 
older than myself. From that age I counted myself a man, and 
■ associated with men — aye, and played a man's part in the strug- 
gle which secured the independence of Texas. Acknowledging 
no control upon my actions, I could not sink from the soldier 
into the schoolboy, so, what education I have acquired, above 
that which a boy of twelve years gathers at common schools, I 
acquired by reading at home all the books I owned or could 
borrow during the time I was not engaged on the frontier. 

If I am guilty of any crime I would not falter, but upon this 
point I am invulnerable. I know that I acted, not from any 
feeling of malice toward any human being, but solely from regard 
to a sacred principle, from the desire to prevent the consumma- 
tion in my presence of an act which, though it may have been 
attempted from good motives, and would certainly have worked 
no injury to the community, as the man sought to be removed 
was a bad man, was, nevertheless, a violation of the Constitution 
of this State, which I had sworn to support, as well as the Con- 
stitution of the United States, to secure the blessings of which 

(119) 



I20 LIFE OF DAVID S. TFRRY. 

to their posterity both of my grandfathers fought and bled and 
toiled and suffered. 

I was taught to believe that it was the duty of every American 
to support the Constitution of this country; to regard it as a 
sacred instrument, not to be violated in the least provision, and, 
if necessary, to die in its defense. The meanest criminal is, under 
that provision, guaranteed the same rights as the noblest citizen, 
and cannot, without a violation of its provisions, be deprived of 
his liberty, except by legal process. It was at this holy principle, 
and the obligations of my oath, that I looked, and not at the 
demerits of the man, whom I knew to be a bad man; and I be- 
lieve that even those who are my self-constituted judges will do 
me the justice to think I would not defend that man for his own 
sake. 

On the sixth day of July, and vi^hile the fate of 
Hoi)kins was the exciting problem of the hour, a 
committee of Terry's friends, headed by Treasurer 
of State S. H. Brooks, visited Judge McAllister, of 
the United States Circuit Court, and appealed to him 
to issue a writ of habeas corpus in behalf of Judge 
Terry, but he refused, stating that he "was unwilling 
to provoke the animosity of the people." Had he 
known that the Executive Committee were hoping 
and praying for just such action to be taken to relieve 
them from the embarrassing situation in which they 
were placed, he would have conferred a favor which 
they would have been too ready and willing to grant. 

The government officials were seeking in every 
way to avoid a conflict between the State and Federal 
authorities, and this refusal on the part of Judge Mc- 
Allister gave color to the belief that the Federal au- 
thorities were in sympathy with the Vigilantes, backed 
as it was by the action of Farragut in withholding 
Boutwell in his desire to turn the guns of the John 



TERRY AND THE VIGILANTES. 12 1 

Adams on Fort Gunnybags. The committee had 
concluded that such a writ was inviolable under the 
circumstances, there being no occasion for disobeying 
such an order in the absence of martial law. State 
officers had been shown great consideration by the 
committee, and had been admitted into the presence 
of the Executive Committee. McAllister was not 
informed of this, or he might have exercised his judi- 
cial functions without "provoking the animosity of 
the people," 

Colonel Zabriskie, General Jas. Allen, and Dr. C. 
B. Zabriskie, made a proposition to Judge Terry, 
which must have had the concurrence of the Execu- 
tive Committee of the Vigilantes, that, upon condition 
that he be set at liberty, he resign the office of asso- 
ciate justice of the Supreme Court. This proposition 
was conveyed to him by his wife, who opposed it with 
all the ardor of her nature. " Why," said she to these 
gentlemen, " the moment he resigns his position he 
will become a mere citizen, and then they will hang 
him." However, she carried the proposition to him, 
and he returned the following laconic reply: " If I 
leave this building alive, I shall leave it as justice of 
the Supreme Court of this State, and no power on 
earth can make me change this resolution." 

The Texas Legislature prepared a memorial to 
Congress, which was presented by Hon. Samuel 
Houston, praying that, if the Federal government or 
Congress could consistently interfere in his behalf, 
it would do so. In presenting the memorial, Hous- 
ton stated that, while in Texas, Judge Terry had 
borne a high character as an honorable man, and was 



122 LIFE OF DAVID S. TERRY. 

an ornament to the community in which he lived. 
Brown, his contemporary in the Senate, stated that 
"a more honorable man than Judge Terry did not 
breathe the air of heaven. He had known him from 
infancy, and his parents before him, and all his con- 
nections. There was not a blemish on his character." 

Senator John Bell, of Tennessee, bore testimony 
to his high character, but alleged that it was a rash 
impulsiveness of nature that got him into this trouble. 
It was John 'B. Weller, then in Congress, who said: 
"Judge Tt^rry is an honorable, high-minded, prudent 
man, who felt bound to use the whole of his moral 
inHuence in favor of sustaining the laws." 

Weller might have spared that word "prudent" 
without a blemish on his meed of praise, but that 
Terry was excessively imprudent, no one knew better 
than himself. He overstepped the bounds of pru- 
dence on every occasion in which his spirit and ener- 
gies were aroused, and that he was a dangerous man 
on such occasions, every act of his life gave testimony. 



CHAPTER XVIII. 

Conference between the Law and Order Forces 
AND Vigilantes — Gwin and Farragut Appeal 
FOR Terry's Release — Extraordinary and Ex- 
citing Event between Farwell and Farragut. 

The following incident is from the pen of James 
O'Meara, one of the men present at the conference 
of which the article treats, and shows to what extent 
the friends of Terry were willing to go in order to 
procure his release and save him from the punishment 
which the death of Hopkins, then hourly expected, 
was sure to bring about: — 

"David F. Douglass was secretary of State. He 
had been elected as a Know-Nothing on the same 
ticket with Terry and Governor Johnson. He had 
been a Whig with Terry, but, being a Southern man, 
his associations were mostly with Democrats of the 
Southern school. He was one of the most vehement 
denouncers of the Vigilance Committee, and took 
sides with Captain (later General) W. T. Sherman, 
Yolney E. Howard, and others of the 'law and order' 
leaders. He was deeply attached to Dr. Gwin, then 
a candidate for re-election to the United States Senate. 
Gwin had taken no part in the domestic controversy, 
although he was friendly with the Maw and order' 
element, as any gQod citizen would be who had a 
9 (123) 



124 LIFE OF DAVID S. TERRY. 

limited knowledge of the condition of affairs. Doug- 
lass, therefore, felt convinced that, above all other 
men, ex-Senator Gwin would be the most influential 
in adopting measures leading to the release of Judge 
Terry from the prison of the Vigilantes, or at least to 
prevent his execution in the event of Hopkins' death. 
"But between Dr. Gwin and Judge Terry there 
existed a feud that quite forbade the interposition of 
the powerful ex-Senaior in Terry's behalf Douglass, 
however, succeeded in overcoming this difficulty, and 
finally persuaded Dr. Gwin to rigorously exert his 
best efforts in aid of the committee's distinguished 
prisoner, who was kept in close confinement within 
the narrow cell allotted to him in the second story of 
Fort Gunnybags. Dr. Gwin at once proceeded upon 
a plan of action he believed most likely to succeed. 
The John Adams, sloop of war, Commcmder Bout- 
well, was at that time anchored in the bay, in good 
range of the central part of the city. Boutwell was 
an outspoken denouncer of the Vigilance Committee, 
and it was reported currently on the street that he 
had declared that upon the first breach of the law 
upon the Federal authority, or upon the property or 
rights of the government by the Vigilance Committee, 
he would open the guns of the John Adams upon the 
city. But he was, nevertheless, under the orders of 
Captain Farragut, then in command at Mare Island, 
and the ranking officer of this port. This reported 
threat of Commander Boutwell had wrought great 
indignation and bad blood among the Vigilance Com- 
mittee members and sympathizers, and some were 
desperate enough to aggravate a -clash and defy this 



TERRY AND THE VIGILANTES. 1 25 

high-tempered officer, but the cooler heads and con- 
trolling minds of the organiz ition and in the com- 
munity prevented so grave a procedure in which so 
many valuable lives would surely have been sacrificed. 
Dr. Gwin and Captain Farragut were warm friends, 
and the ex-Senator fok that the gallant naval chief 
was the very best man for the emergency. He in- 
duced Appraiser-General Samuel P. Bridge to repair 
to Mare Island to bear to Farragut an urgent letter, 
requesting his presence in San Francisco at the very 
earliest moment, on a matter of which he would then 
be personally informed. General Bridge took the 
steamboat for Mare Island Tuesday morning. On 
Wednesday he returned with Farragut, who pro- 
ceeded at once to the rendezvous appointed by Dr. 
Gwin, who was there to meet him. After an hour's 
interview with the commander, Dr. Gwin sent for 
General Bridge and James O'Meara (the writer), and 
desired them to invite four of the Vigilance Executive 
Committee, naming only two of the four, Jas. M. 
Dows and Nicholas O. Arrington, to attend a private 
conference at the rooms of General Bridge in the 
custom house, at 2 o'clock that afternoon. T. W. 
Farwell, a hardware merchant, and Chas. Hutchins, 
of the Boston house of Davitzer & Hutchins, were 
the other two invited. At the appointed hour the 
eight men met in General Bridge's room. There were 
present on the side of the law and order, Dr. Gwin, 
Commander Farragut, General Bridge and James 
O'Meara; of the Vigilance Executive Committee 
members, the four just above named. Dr. Gwin ex- 
plained the object of the meeting, and Mr. Dows re- 



126 LIFE OF DAVID S. TERRY. 

sponded in a long statement as to the situation in the 
Executive Committee. He stated that the committee 
had organized 'to hunt down and drive away or kill 
off a lot of villainous coyotes, but they had unexpect- 
edly trapped a grizzly bear, and they were worst puz- 
zled how to get rid of him than anybody on the out- 
side could possibly imagine.' 'It was the constant 
hope and hourly prayer of the Executive Committee,' 
he went on to say, 'that Hopkins would recover, for 
they dreaded the consequences most likely to follow 
his death, and trembled at their own position. The 
committee was not its own master; its members were 
but thirty-six strong, while behind them, and in effect 
controlling or forcing their action, stood six thousand 
armed men, many of them reckless and hasty, some of 
them foreigners who did not speak the English lan- 
guage, and all of them clamorous for the execution of 
Judge Terry .in case Hopkins should die. The Exec- 
utive Committee were themselves actually powerless 
to guide or restrain these six thousand armed and 
resolute men, who insisted that no distinction should 
be made in dealing with the Caseys, the Coras and 
others of low degree, and such a distinguished prisoner 
as the judge of the Supreme Court, already in their 
remorseless clutches. The lives of the Executive 
Committee were threatened by these men should 
Terry be permitted to escape from his prison in Fort 
Gunnybags, and the members were only too strongly 
convinced at that time that this was not an idle threat, 
or one to be disregarded.' 

"This substantially was the terrible dilemma of the 
thirty-six Executive Committee men, and Mr. Dows 



TERRY AND THE VIGILANTES. 127 

was not well satisfied in his own mind that there were 
not, in the executive body itself, men who felt very 
much in consonance with the six thousand and their 
outside sympathisers. After he had thus expressed 
himself, Captain Farragut explained his presence 
and desire at the conference. He presented the 
case with remarkable clearness, and adverted to 
the frightful consequences certain to be visited upon 
the entire State, and upon San Francisco particularly, 
concerning the growth and future of each, the evil 
name that would be fastened upon California and 
this city at the East, in Europe, and throughout 
the world, should the lawless organization put to death 
one of the highest judicial officers of the State ; and 
the disastrous effects of the violent deed in every con- 
ceivable aspect were depicted by him with great force. 
He then answered a question by Mr. Hutchins, rela- 
tive to the reported threat of Commander Boutwell, 
stating that as the latter was subject to his orders no 
fears of the fulfillment of the menace — granting it to 
be a fact — need be apprehended. And next he pro- 
ceeded to the proposition he had deliberated upon for 
the consideration of the Executive Committee, it to be 
communicated to that body by the four members pres- 
ent. It was that the person of Judge Terry should be 
delivered to an officer of the John Adams, who 
should be directed to receive him on bo ird the war 
ship's gig at the foot of Market Street wharf at mid- 
night; that the vessel should convey Terry at once to 
Mare Islard, and that there, before he should permit 
the judge to go on shore, he, Commander Farragut, 
would exact from him a promise that he, Terry, would 



128 LIFE OF DAVID S. TERRY. 

go into the interior of the State, remain there for not 
less than six months, refraining all the time from either 
speech or action calculated to arouse his friends or the 
public to any movement against the committee, and 
neither to sit upon the bench nor visit San Francisco 
until the excitement had entirely subsided. 

"To this Mr. Dows replied that the committee had 
no knowledge of the conference; that himself and his 
three associates present were in no respect empowered 
to act in the matter; that the jDroposition would, as a 
matter of course, have to be submitted to the Exec- 
utive Committee for determination; and he remarked 
further, that, while he was exceedingly anxious to 
have Terry out of the hands of the committee, he 
thought that the proposition would not be approved 
at the committee room, for the reason that the execu- 
tive body had already before them the proposition of 
Judge Terry himself as to his case, which to him 
seemed more likely of acceptance than that which 
Captain Farragut had offered. Then, stating the de- 
tails of that proposition, he closed by saying that the 
Executive Committee had evinced such spirit in the 
matter as to convince him that even it would be re- 
jected. Dr. Gwin and Commodore Farragut there- 
fore more earnestly urged the imperative necessity of 
Judge Terry's release, and insisted that in no event 
must his execution be ordered by the committee, and 
to more deeply impress the four committee men with 
the awful gravity of any such extremity of punishment 
and of the fearful responsibility that would rest upon 
every one of them, and their associates of the Execu- 
tive Committee, Commodore Farragut alluded to the 



TERRY AND THE VIGILANTES. 129 

possibility of the interference finally of the Federal au- 
thority. His speech was impressive, his manner most 
earnest, and all present were visibly moved by it ex- 
cept Farwell. He seized the opportunity, the moment 
the commodore had concluded, to rise and speak his 
sentiments. He was rash, impetuous, defiant, and al- 
most insolently reckless of speech, and of superior 
authority from any quarter. He went on to declare, 
with loud voice and offensive manner, 'that the Vigi- 
lance Committee was a commanding and invincible 
power; that it had mastered the city government; that 
it had compelled Governor Johnson to back down and 
surrender the county prison and deliver up the mur- 
derers harbored there.' Then he exclaimed, or was 
exclaiming, 'And if the Federal government under- 
takes to interfere we will show its minions that we 

can whip ' 

" He had no opportunity to utter another word. He 
had hardly managed to utter the last half dozen words 
of his extraordinary harangue and menace, for at 
the word 'minions,' Farragut leaped to his feet, and 
then it was those clear, deep blue eyes, in repose full 
of sweetness and light, flashed their fiery fury, and he 
looked the incarnation of the avenging custodian and 
majestic champion of his country's honor and might. 
He was actually a little below medium height and 
figure, but at that moment he seemed a giant of giants 
in the grandeur of his mighty rage, taller even than 
the towering ex-senator, who had also risen from his 
chair and stood erect to his full stature of six feet two 
inches, the personation of outraged dignity and ter- 
rible passion. Farragut's indignation appeared super- 



I 30 LIFE OF DAVID S. TERRY. 

naturally grand, and it was as an overwhelming force 
that bore everything before it. His whole form was 
rigid with the sudden burst of nervous force, his usu- 
ally mobile mouth was of steel, his face surcharged 
with the violence of his fierce emotion; but more 
dreadful and more electrifying than all was the "fire 
and fury" of his soul-subduing eyes, which until that 
instant had beamed so kindly and so gratefully in the 
course of the earnest but courteously-conducted c nfer- 
ence. The cause and object of this magnificent anger 
seemed suddenly struck dumb; and then poured forth 
for but a moment his torrent of eloquence and burning 
denunciation, his fervid words of patriotic inspiration, 
his devotion to duty, and his fearlessness of anything 
in its faithful performance. It was as the burst of the 
hurricane; it leveled everything before it, and when 
the fury of its blast was over, when the hushed calm 
succeeded, there was no other sound. The conference 
wrought no good. Its members hurried away." 



CHAPTER XIX. 

Hopkins Provides for Terry's Release by Get- 
ting Well — Terry Is Tried by the Commit- 
tee — Extraordinary Proceedings in His Case 
— He Is Released — Unwise Proceedings by 
His Friends. 

All efforts having failed to secure Judge Terry's re- 
lease by his friends, it was left for his victim to furnish 
the avenue of escape. He had been nursed and at- 
tended by hands that would not have spent the time 
or wasted any sympathy over him but for the man 
who had inflicted the dangerous wound. Terry's life 
was of more value than that of Hopkins, and to avoid 
an atonement so deeply fraught with consequences 
that were sure to follow his death, tender hands admin- 
istered to his wants with unusual anxiety. About the 
15th of July he began to show symptoms of recov- 
ery, and in a day or two thereafter he was pronounced 
out of danger by the physicians. It was a day of re- 
joicing among the members of the Executive Com- 
mittee of Vigilantes as well as among his friends. No 
sooner was the announcement made than the commit- 
tee renewed the trial of the judge under the charges 
that had been preferred against him. The Executive 
Committee was composed of thirty-six members, and 
the findings of this committee, in all cases, were to be 

( 131 ) 



132 LIFE OF DAVID S. TERRY. 

passed upon and concurred In by a majority of a 
Bo ird of Control, composed of one hundred members. 

The first charge against him was that of resisting 
an officer of the committee while in the discharge of 
his duties. On this count he was found guilty, three- 
fifths being required to convict. 

The second charge was that of assaulting Sterling 
A. Hopkins with a deadly weapon with intent to kill. 
On this count he was found guilty of simple assault. 

The third charge was that of an assault on a man 
named Evans, on which count he was declared not 
guilty. 

The fourth, fifth and sixth charges, which are not 
on record, were dismissed, being unsupported by 
any evidence. 

On the seventh charge, that of an assault on J. H. 
Purdy with a deadly weapon, he was found guilty of 
an assault only. 

As the charges on which he was found guilty did 
nor amount to any violent execution, the greatest pun- 
ishment being that of banishment, the committee con- 
cluded to pass upon him the following sentence: 
"That Dcivid S. Terry, having been convicted, after 
a full, fair and impartial trial, of the charges before the 
Vigilance Committee, and the usual punishment in 
their power to inflict not being applicable in the pres- 
ent instance; it is therefore declared the decision of the 
Committe of Vigilance, that the said David S. Terry 
be dismissed from custody. 

"That, Resolved, In the opinion of the Committee of 
Vigilance, the interests of the State imperatively de- 
mand that said David S. Terry should resign his posi- 
tion as ju:5tice of the Supreme Court." 



TERRY AND THE VIGILANTES. 1 33 

The decision was ordered read to the prisoner, and 
that he be discharged upon a ratification of the find- 
ings by the Board of Delegates of one hundred mem- 
bers. 

On Friday, July 25, the delegates met, and, acting 
upon the findings of the Executive Committee sepa- 
rately, a motion to concur in the report as a whole was 
lost. The verdicts on each count were concurred in 
until the seventh, the assault upon Purdy, which was 
dismis ed. At this meeting the action of the Execu- 
tive Committee in the trial, together with the evidence 
and statement o: Terry in his own defense, were pre- 
sented to the Board of Delegates. No final action 
having been taken, the Board adjourned. 

At a meeting on the 31st of July, ninety-two mem- 
bers of the Board being present, the question came 
up for final action, and it was ''Resolved, The execu- 
tive concurring, that he be banished from the State 
on the shortest possible notice, under the usual pen- 
alty " That penalty was death. The whole matter 
was then referred back to the Executive Committee, 
with the proposition that the Executive Committee 
and Board of Delegates meet in joint session and 
settle the vexed question. 

The joint session met on August 5, and, after each 
had expressed their views, a vote was taken by the 
Board of Delegates on a motion to reconsider the 
sentence, which was carried, and the views of the 
Executive Committee were adopted by a vote of 44 
to 36. On the seventh day of August a meeting of 
the Executive Committee was held, and it was re- 
solved that the sentence be read to Judge Terry, and 
that he be forthwith discharged. 



134 LIFE OF DAVID S. tERRY. 

Considering the fact that Justice Terry was not a 
dishonest and disreputable character, no punishment 
in the scope of the committee could be inflicted, and 
yet it is strange that, after finding him guilty on three 
charges, he should be set at liberty. All other ques- 
tions had sunk into insignificance, and the subject of 
his imprisonment as a representative of the State 
government, coupled with the words of Farragut, and 
the presence of the war ship John Adams and its 
threatening guns, probably had something to do with 
the peculiar verdict. Considering the obstinate deter- 
mination of the Vigilantes as a body, it was. a narrow 
escape, and, but for the cool judgment of W. T. Cole- 
man and his influence as chairman of the Executive 
Committee, the sentence of banishment would cer- 
tainly have been carried out. Terry's defense set 
forth the fact that he was not actuated by any desire 
to protect Malloney, as he had no doubt but that he 
was a man who ought to be punished, but that he was 
actuated solely by a desire to uphold the dignity of 
the Constitution and laws; that he was overcome by 
his passionate nature, and deplored the result as much 
as any man belonging to the V^igilance Committee. 

After his liberation there were many who were 
bitter in their denunciation of the action taken, and, 
until he was safe on the John Adams, a conflict was 
feared. Letters were received by the Executive Com- 
mittee from all parts of the State, both from members 
of the committee and friends who had extended their 
sympathies and their aid to the movement, some cen- 
suring and some complimenting the action pf that 
body, but all inquiring as to the particulars which led 
to the final release of judge Terry. 



TERRY AND THE VIGILANTES. 1 35 

Without the Terry episode the reign of the cele- 
brated Vigilance Committee would never have become 
an absorbing theme, and would have no interesting 
place in the history of the State, for the execution of 
Casey and Cora was but a matter of simple justice, 
outside of the ordinary process of the courts. The 
deliberate murder of James King was a tragedy which 
led to the purification of the social and political atmos- 
phere of San Francisco, and permeated the State in 
its cleansing operations. 

When Terry was liberated, he was conveyed to the 
United States sloop of vi2iX John Adams, and by it to 
a steamer bound for Sacramento. The transfer was 
made at 2 o'clock in the morning, which indicated 
that the committee was acting in opposition to some 
force which they feared. At the time of the transfer 
from the war ship to the Sacramento boat, Captain 
Boutwell, who commanded the John Adams, very 
imprudently made an exhibition of his feelings by 
ordering a salute of one gun and cheers from the rig- 
ging, as though in defiance and as a signal of victory. 

Judge Terry was taken by the steamer directly to 
Sacramento, and here another indiscreet and irritating 
performance took place. He was taken from the 
steamer and escorted to the Orleans Hotel by a torch- 
light procession. Here he was tendered an ovation, 
and congratulatory speeches were made by Colonel 
E. D. Baker, Todd Robinson, Volney E. Howard, 
Vincent Geiger, and Horace Smith, and the feast and 
dancing were kept up until morning. A few days later 
he was in his place on the Supreme Bench with 
Justice Murray. Considering the fact that he had 



136 LIFE OF DAVID S. TERRY. 

only saved his neck by the superior physical endur- 
ance of Sterling A. Hopkins, these demonstrations 
were altogether out of place. 

After he became a free man, and once more on the 
bench, various applications were made by his indis- 
creet and hot-heated political friends who were promi- 
nent in the counsels of the party, asking him to pros- 
ecute members of the Vigilance Committee, but he 
refused to have anything to do with it, expressing 
the opinion then, as he did in after years, that it had 
exerted one of the greatest moral and political in- 
fluences for good in the State, David C. Broderick, 
then a power in the p litics of the State as a leader, 
and as brave and intrepid in his dealings as he was 
unscrupulous in his methods, was a friend of Terry's 
and an enemy of the Vigilance Committee. While 
he did not make any personal warfare against the 
organization, being too crafty and too deeply absorbed 
in his own political aggrandizement, he contributed 
liberally to the fund that sustained the Herald, the 
only anti-Vigilante newspaper published in San Fran- 
cisco,, edited by a daring and outspoken writer named 
John Nugent. He was particularly liberal in the de- 
fense of Judge Terry, and in after years this became 
a matter of public notoriety, and was acknowledged 
by Broderick, as the sequel will show. 



CHAPTER XX. 

His Services on the Supreme Bench — His Asso- 
ciates — Their Characteristics — Evidences of 
His Peculiar Character for Integrity — Ex- 
pressions OF the Stockton Bar, 

Upon taking his seat as a member of the Supreme 
Court, Judge Terry was not out of his sphere. It 
was merely a step higher in the profession, and, in 
the nature of things, by virtue of' his recognized abih- 
ties and integrity, he was eminently qualified to fill 
the position. The political reverses that had come 
upon the Democratic party had benefited the people, 
not only in him, but in all the elective offices of the 
State. He was now a man of mature manhood, and 
was fully armed wiih a knowledge of the law. He 
was the senior of the chief justice, and yet he was 
only thirty-two years of age. 

He took his place on the bench in October, 1855, 
succeeding Judge Charles H. Bryan, who had been 
appointed by Governor Bigler to fill the vacancy 
caused by the death of Alexander Wells. The first 
opinion which Judge Terry delivered is reported in 
volume five of " California Reports," page 462, and 
the last decision of the court in which he took a part 
is found in volume fourteen, page 74, having resigned 
his position on September 12, 1859. 

His associates, when he assumed the position, were 



138 LIFE OF DAVID S. TERRY. 

Hugh ]. Murray, chief justice, and Solomon Heyden- 
feldt, associate justice. Judge Heydenfeldt resigned 
early in 1857, and was succeeded by Peter H. Burnett, 
and, Judge Murray having died in September of the 
same year, Stephen J. Field took his place. Judge 
Burnett's term expired in October, 1858, and Joseph 
Gs, Baldwin was elected to the position. 

Judge Terry, during his official career, which lasted 
within a few days of four years, was variously asso- 
ciated with Judges Murray, Heydenfeldt, Burnett, 
Field, and Baldwin. All of these were men of great 
intellectual force, scholarly attainments, and legal 
learning. Murray was an intellectual prodigy, ele- 
vated to the bench at the early age of twenty-seven 
years, and of habits of life which were not calculated 
to aid their possessor in judicial research, yet his 
opinions are models of perspicuity. Of him it was 
said by Judge Terry, in the proceedings of the court 
had upon his death, which cut him off at the early 
age of thirty-two years: "As a judge he was great, 
impartial, and fearless. As a man he waS remarkable 
for the possession of social qualities which won in a 
peculiar degree upon the confidence and affections of 
his associates. He was frank, candid, and ingenuous 
almost to a fault, generous to prodigality, and firm 
and faithful in his friendships." 

Judge Baldwin had a high reputation as a lawyer, 
and had also distinguished himself in' the field of let- 
ters, being the author of " Party Leaders," and of 
"Flush Times in Alabama and Mississippi," the latter 
a book of the most exquisite humor. He was a most 
delightful companion, and had an inexhaustible fund 



TERRY AS SUPREME JUDGE. 1 39 

of anecdote. Judges Heydenfeldt and Burnett were 
also men of distinction, the first named being a promi- 
nent attorney before his appointment to the bench. 
The latter was the first governor of the State, and is 
still living in San Francisco, venerated by all who are 
so fortunate as to be in the charmed circle of his ac- 
quaintance. Of Judge Fi Id, whatever opinion may 
be entertained of his integrity, there is but one opinion 
as to his ability. Judge Terry once said to a partic- 
ular friend that there was no man living who could 
give better reasons for a wrong decision than Field; 
and, further, that "he never decided a case against 
a corporation in his life." It was also said of him. by 
one who is himself a distinguished jurist of this State, 
at one time chief justice, and at present on the bench, 
that "he is the ablest man that lives, ever had lived, 
or ever would live." This, of course, is admiration 
expressed without limit. 

The opinions of Judge Terry are characteristic of 
the man. Plain and simple in his habits of life, he 
despised pomp and display. He decided the cases 
that were submitted to him, and did not attempt to 
write treatises, which sho"uld be published at the State's 
expense, in every decision which he rendered. As 
a consequence, his decisions are short and pointed. 
Like everything he said, they are so plain that a 
" wayfaring man, though a fool, can read and under- 
stand." He stuck to his text, and, being a man pos- 
sessed of a singular power of directness, he went 
straight to the meat of the proposition. His ideas 
upon the practice of judges introducing extraneous 
matter into their opinions, and hazarding conjectures 



140 LIFE OF DAVID S. TERRY. 

as to what the law would be under given conditions, 
are set out with characteristic force in his opinion on 
the once celebrated case of " Warner z'i'. The Uncle 
Sam," Ninth California, page 732. This was a case 
involving the question as to wh;nher or not in certain 
cases the Federal courts had exclusive jurisdiction. 
In his remarks upon the dicta of judges to that effect, 
he said: "The loose expressions of the Federal judges 
occurring in opinions involving other and very dif- 
ferent issues, cannot be regarded as authority upon 
the question of jurisdiction. There is often contained 
in the published decisions of courts two different kinds 
of opinions, judicial and extra-judicial. A judicial 
opinion is one that is on the question before the court. 
It is the direct, solemn, and deliberate decision of the 
court upon the issue raised by the record and pre- 
sented in the argument. Such an opinion is abso- 
lutely binding on all subordinate tribunals, and is re- 
ceived as authority in courts of co-ordinate jurisdic- 
tion. An extra-judicial opinion is an opinion given 
on a question not necessary to decide in the case in 
which it was given. . . . Such opinions are re- 
garded as the mere gratuitous expressions of the judge 
pronouncing the judgment, and not as the deliberate 
ruling or opinion of the court; and, though the well- 
established reputation for learning and ability of the 
judge in whose opinion they occur may in some cases 
entitle them to respectful consideration, they have 
never been regarded as authority." 

In his opinion in this case, Judge Terry, who was a 
firm believer in the doctrine of State's rights, or rather 
the construction of the Constitution as given by Cal- 



TERRY AS SUPREME JUDGE. I4I 

houn, said : "The several States of the Union are 
sovereign, and endowed with all the attributes and 
rights of independent States, except such as by the 
Constitution have been surrendered to the United 
States, or prohibited to the individual States. Among 
the attributes of sovereignty is the power and juris- 
diction to determine fully all controversies affecting 
the rights of her citizens. This power has not, as we 
have endeavored to show, either expressly or by neces- 
sary implication, been taken away, but remains in full 
vigor in the State government. Jurisdiction in cer- 
tain cases was given by the Federal Constitution to 
the United States courts, but the grant contains no 
words of exclusion nor any evidence of an intention to 
take from the tribunals of the several States the pow- 
ers which were vested in them." 

This opinion was rendered in 1858, and was the 
view taken by the followers of Calhoun, or those who 
contended for the strict construction of the Constitu- 
tion. The controversy which had long been carried 
on in the judicial forum and in the Senate was, in 1861 , 
transterred to the camp and settled by the arbitrament 
of war. Since that time the doctrine of State's rights 
has never been asserted, for the last vestige and 
shadow were taken away by the laws of Congress 
passed in 1875, by the terms of which any action com- 
menced in a State court, can, upon application, be trans- 
ferred to the Federal court, which has the sole right to 
decide questions of jurisdiction. 

About the time Jus.tice Field wrote his decision 
upon the legal tender act, which won for him the 
gratitude and affection of the people of the Southern 



142 LIFE OF DAVID S. TERRY. 

States, he told Judge Terry that his views expressed 
in the Warner case were correct, and he was sorry he 
had not concurred with him, to which Terry repHed: 
" Had you done so, you would never have been on the 
Supreme Bench of the United States. 

At that time there were many cases arising out of 
political complications, and the first one which Judge 
Terry was called upon to examine was one involving 
the legality of the election of a county judge in Cala- 
veras County to fill a vacancy caused by the death of 
that officer. A special election had been ordered by 
order of the Board of Supervisors and an election held 
without notification of such vacancy having been sent 
to the Governor. A contest was made and the case 
came before the Supreme Court. The court below had 
decided that the election was not valid in the absence 
of a proclamation by the Governor, and further that 
under the Constitution and laws the Governor must 
appoint the judge to fill the vacancy until the next 
succeeding general election. In his opinion Judge 
Terry affirmed the decision of the court below, and 
judge Heydenfeldt concurred. Chief Justice Murray 
dissented, stating that the people are, in their sover- 
eign capacity, greater than the law when in the regu- 
lation of their domestic affairs and not in conflict with 
justice. It was a popular idea, but it contravened tlie 
constitutional provision. It was the doctrine of popu- 
lar sovereignty brought down to a narrow limit, and 
was only objectionable because it did not follow in the 
line of the strict constructionists to which school Terry 
belonged. Terry was above any narrow special plead- 
ing and confined himself to the letter and spirit of the 



TERRY AS SUPREME JUDGE. 1 43 

Constitution. In all his official acts he was with the 
people almost to a fault, but he had a reverence for 
the Constitution and laws, considering himself the cus- 
todian of justice, which permitted of no partiality in 
construction and opinion when the letter was at fault 
in expressing the spirit. 

Justice Terry was especially severe on pettifogging 
and sharp practice in the profession. A case came 
before the court where default had been taken and al- 
lowed by the lower court through a mistake by inad- 
vertance made by an attorney in the allegations of a 
complaint. The lower court had refused to allow the 
attorney to cure the defect by an amended complaint, 
and upon this ruling the case was appealed. In his 
opinion Judge Terry said: "Such a defect cannot be 
cured by a default taken against a defendant through 
such mistake or inadvertance of counsel." The de- 
cision was reversed and the case remanded for a new 
trial, with costs. The decision states that, "in the 
construction of a statute, the intention of the Legisla- 
ture must govern, and this must be ascertained, not 
from a particular sectijn, but from the whole statute." 

In all his decisions he was brief and clear. No 
more truthful and just encomium could have been 
uttered than that embodied in a resolution of the 
Stockton bar after his death, and which is applicable 
here: — 

"That as a judge he was great and pure; his judicial 
life is immortalized in his opinions which have become 
a part of the comnionwealth, embodied in the reports 
of the Supreme Court of the State, where they shall 
stand forever, reflecting luster upon his career as a 



144 LIFE OF DAVID S. TERRY. 

judge, without stain and above reproach; that he was a 
man of pre-eminent mental endowments, and that he 
stood intellectually easily in the front rank of the dis- 
tinguished men who have, by their services, rendered 
the history of the western slope of the continent illus- 
trious." 



CHAPTER XXI. 

Terry's Disgust for Politics and Political Meth- 
ods — The Value He Placed upon Justice — In- 
cidents OF His Honesty in the Face of the 
Tempter — Strong Southern Views. 

One peculiarity and redeeming virtue which he pos- 
sessed was a strict and undivided application of his 
energies and talents to the conditions before him. 
While a judge he was not a politician. The seething 
whirl which was lashing the populace in the mad en- 
deavor for place never called him from the bench to 
the forum, and he took no part in the heated, exas- 
perating and disgraceful contlict which was raging dur- 
ing all this time between Gwin and Broderick. The 
dignity of the position which he held, required that 
sublime dignity which he possessed to fill. In all re- 
spects he was equal to the occasion. His undeviating 
honesty and impenetrable mould of dignity was the 
shield which kept him above and beyond the exciting 
and irritating flood of political controversy. He sank 
the politician in the judge, and in his decisions he had 
no friends to reward, nor enemies to punish. In the 
Supreme Court reports, from volume five to fourteen, 
covering a space of four years, he has left the impress 
of his judicial mind. They are models of condensa- 
tion, and marvels of simplicity. 

( 145 ) 



146 LIFE OF DAVID S. TERRY. 

The enactment of the fugitive slave law in 1850 
drew a very marked and irritating chord between the 
proslavery and antislavery elements of the South 
and North, bringing to the surface a divided sentiment 
and drawing the line more distinctly, creating a bit- 
terness of feeling, and much strife and contention. 
Open and avowed enemies of the law sprang up where 
least expected, and a milder name than that of "abo- 
litionist" was assumed by men of prominence by the 
substitution of "Free Soilers." The tender South- 
erner, wedded to slavery, nursed his prejudices with 
all the nervousness that he possessed, and every event 
which encroached upon the rights of the master to his 
human chattel was jealously watched, and promptly 
resented. California was not altogether free from the 
excitement that prevailed at this time, and a case 
found its way before the Supreme Court while Terry 
was on the bench. All the judges were men of 
Southern birth and education, and were nurtured in 
the belief that slavery was a divine institution. The 
following brief reference to a decision delivered by 
Associate Justice Burnett, and concurred in by Justice 
Terry, is taken from an article from the pen of E. G. 
Waite, now Secretary of State, and published in the 
Overland Monthly of October, 1889: — 

"Stovall, a young man in poor health, had brought 
his slave Archey with him to this State. Archey had 
assumed to be free. A case was brought before the 
Supreme Court. Burnett wrote the decision. After 
citing the law and precedents, the learned judge says 
there are but two exceptions to the general rule, by vir- 
tue of which a slave can be taken to a free State, and not 



TERRY AS SUPREME JUDGE. 147 

be a free man. A traveler has the right to take his 
slave in transit, and a visitor is granted the privilege 
by comity. But, says the learned judge, it will be 
seen by the reasoning that the slave in this case does 
not corne under either of the exceptions; but as his mas- 
ter is sick, we will not draw the line very closely this 
time, as it is the first instance, but shall rigidly adhere 
to the rules hereafter. Jo Baldwin, himself a Virgin- 
ian, afterwards chief justice of this State, wittily said 
of this decision, that it gave * the law to the North 
and the negro to the South.' judge Terry concurred 
in the decision, but added that in his opinion this 
master lost none of his rights to the slave if he went 
to work to obtain a support while sojourning in a free 
State. It is difficult to tell where such a doctrine, 
carried out to all its logical consequences, would end; 
certainly, it is more far-reaching than the Dred-Scott 
decision, made soon after, which only affirmed the 
right to take slave property into Territories. 

"Judge Terry was a believer in African slavery, and 
had little patience with anyone who was not. His 
reasoning and sense of justice were warped to suit 
that belief. But should not the mantle of charity be 
flung over him, when in Northern pulpits at that time 
reverend divines preached in favor of the institution 
from the texts, 'Cursed be Canaan,' and 'Servants obey 
your masters,' as commands from on high applicable 
to American slavery, while all around them lived souls 
imbued with a diviner sense of right than the God 
these sacred teachers affected to worship. f* Terry 
never had such advantages, and came nearer guiding 
himself by the best light he had," 



148 LIFE OF DAVID S. TERRY. 

judge Terry was radical. He was opposed to 
compromising his opinions and his beliefs in order to 
evade or lighten the weight of law and justice. In 
modern parlance he did not believe in "fooling with 
a buzz saw." He looked upon all temporizing as 
deception and dishonest, only delaying, an inevitable 
result. He believed that the people were, as a rule, 
intelligent and were entitled to a full, fair, and impar- 
tial verdict in the construction of all laws, and if a 
plain and honest opinion was radical, it was right and 
just to be radical. 

A legal centroversy came up before the Court of 
Sacramento County, involving the obligations and re- 
sponsibilities attached to railroad companies in rights 
of way for railroad beds. The Sacramento Valley 
Railroad, the first railroad constructed in the State, 
was built to Folsom, and passed through a farm be- 
longing to a man named Moffatt. To protect his 
crops and stock, the track had to be fenced in, and 
the expense incurred in building the fence was a mat- 
ter which the company proposed to test in the courts. 
The lower court gave the verdict to the railroad com- 
pany and Moffatt appealed, judge Terry wrote the 
opinion, in which he reversed the lower court, stating 
"that the cost of such fences must be included in the 
compensation to be paid by the railroad company." 

In 1857 an act was passed by the Legislature, ap- 
propriating $100,000 for the construction of a wagon 
road to the Sierra Nevada Mountains. The act also 
provided a Board of Commissioners, naming Surveyor 
General John A. Brewster and Secretary of State 
David F. Douglas, as said commissioners to locate 



TERRY AS SUPREME JUDGE. 1 49 

the road and carry out the provisions of the act. At 
that time the State debt exceeded the constitutional 
Hmit by $100,000, and to test the constitutionality of 
the law, an action was brought against the State in the 
name of the people vs. Governor J. Neely Johnson by 
the Board of Commissioners, enjoining themselves 
from entering into said contract. A demurrer was 
submitted by defendants, which was overruled by the 
court below and the law declared unconstitutional. 
The case was taken up by stipulation to the Supreme 
Court, and the opinion was delivered by Chief Justice 
Murray, and concurred in by Justices Heydenfeldt 
and Terry. After citing the constitutional provision, 
the court says: — 

" It is somewhat singular that this question, in- 
volving as it does such vital interests to the people 
of this State, has never been raised in this court be- 
fore. It has been made the subject of legislative dis- 
cussion and executive messages, but there seems to 
have been a general disposition on the part of all to 
give it the go-by, and the power of the Legislature 
to contract a debt of more than $300,000, except in 
the manner provided in the Constitution, has never 
before, within our knowledge, been questioned in any 
court of justice. Whether considerations of public 
policy have actuated the other departments of the 
State government in avoiding a judicial exposition of 
this article of the Constitution, or private interests 
have excluded any question on the subject, we are, 
of course, unprepared to say; but, the question having 
been fairly made and presented for our determination, 
we are ready to pass upon it without hesitation." 



150 LlFfi OP DAVID S. TERRY. 

After referring to and quoting the language of the 
framers of the Constitution on the subject of State 
debt, the court says : — 

" In the present case there are no considerations 
based upon settled rules presented to us. The whole 
argument rests upon what is supposed to be reasons 
of public policy, and the inconvenience which will 
result to a few scrip and bondholders who have come 
into possession of these evidences of indebtedness 
with a full knowledge of their worthlessness." 

In concluding, the judges say: — 

" Before closing, it may not be improper to intimate 
our opinion with regard to the manner in which the 
present indebtedness of the State can be legalized, 
as we cannot entertain a doubt that the people of this 
State will act in good faith in this behalf, and that 
they are as zealous of her honor as they would be of 
their own. We have no fears that those who have 
adopted California as their future home, who have 
laid broad the foundations of an empire on the Pacific 
Coast, will ever permit her faith to be questioned, or 
her name to be branded with repudiation. We have 
an abiding faith in the integrity and justice of the 
people, and believe that, while they will readily assent 
to any measure to secure the payment of our present 
indebtedness, they will take heed how they incur such 
obligations in the future. 

"In announcing this opinion we are aware that we 
will meet with the opposition of those whom self- 
interest ever prejudices; but, if it shall have the effect 
of lopping off the unseemly excrescences which cluster 
so thick around the administration of the government, 



tERRY AS StJPREMt: JUDGfe. . l5t 

or of correcting any of the evils which we have shad- 
owed forth, we will rest contented, well satisfied that 
time and a sober judgment will, sooner or later, justify 
both the necessity and the correctness of this opinion," 

It was understood at the time, and verified in after 
years, that this decision was written by Associate 
Justice Terry, and there is nothing about it that would 
suggest a contrary opinion, except its extreme length, 
which can only be accounted for in the fact that the 
question was one of vital importance to that class of 
people who made merchandise of State bonds and of 
the State's credit. In the article referred to, Mr. 
Waite presents an incident in connection with this 
decision which is worthy of a place in this book as 
showing the value which Judge Terry placed upon 
his honor and integrity: — 

"The judge had been saving of his salary, and 
about $2,000 in warrants on the treasury were in his 
hands at the time the decision had been agreed on, 
but not promulgated. He needed money, and there 
were present the influences of precedent and pressure. 
I have heard the tempter himself relate the circum- 
stances. He approached Judge Terry when at work 
at his table, and said in substance: 'Judge, you can- 
not afford to lose this scrip you have on hand. You 
have a family to support. I have sold scrip for others 
to a certain firm here, and I will do the same for you.' 

"My informant, who was in a position to know 
what the decision would be, said in an instant there 
was the form of an infuriated giant towering over him, 
and a stentorian voice in his ears: 'What! do you 
take me for a thief.f* Do you think I would 



152 LIFE OF DAVID S. TERRY. 

cheat a Jew with what I have declared worthless? 
No, sir; I shall take my chances with the other cred- 
itors of the State for its redemption. Never come to 
me with such a proposition again, sir!' 

"With few affinities for the class to which Judge 
Terry belonged, I confess to have had a respect for 
him for his honesty to this day, from the impression 
this circumstance produced. The people — to their 
lasting credit — the next year adopted the debt by a 
direct vote." 

Mr. Waite, in making up his estimate of David S. 
Terry's character as a judge, gives voice to the' idea 
that his " temperament and mind cannot be said to 
have been judicial." While the writer does not wish 
to take issue with that gentleman, the verdict of his- 
tory, as presented in the services of David S. Terry, 
from his earliest boyhood, points to the fact that he 
was especially adapted to the bench. His peculiar 
disposition, his natural infirmity of temper, and his 
exalted sense of dignity and honor which controlled 
his actions under all circumstances, endowed him with 
all the essential attributes of a judge. He would not 
imperil his reputation by any undue violence only in 
defense of these sacred virtues, and, possessing an 
imperious will and a fund of legal knowledge, coupled 
with natural good judgment, he could command him- 
self in that exalted position. 



CHAPTER XXII. 

Preliminaries to- the Great Political Contest of 
1859 — Broderick and Gwin the Champions — 
Both Elected Senators — Broderick Wins the 
Long Term — Bad Faith on the Part of Gwin 
— Broderick and Perley. 

Referring again to the exciting and all-absorbing 
political contest between Broderick and Gwin, the 
two giants are both defeated in their aims. The 
opposition had secured the Legislature, and, as Gwin's 
seat in the Senate would be vacant the following 
March, it was the duty of the Legislature to elect his 
successor. As there were a large number of old-line 
Whigs, and men entertaining free-soil sentiments, 
in the composition of that body, Gwin, although a 
Know-Nothing by initiation, could not expect a ma- 
jority to accept his extreme proslavery views, but he 
believed he had a sufficient number of friends among 
the members to prevent the election of a senator at 
that session. Broderick knew he had no following, 
and it was then that the two giants came together 
and put their labors in a balance to prevent any elec- 
tion at that term, being willing to take chances at the 
next election, although the State would suffer by the 
absence of one of its senators in Congress for two 
years. Broderick had a few able men in the Legis- 
lature. It was his aim always to provide a strong 
n (153) 



154 LIFEOF DAVID S. TERRY. 

support by having able men chosen to man his forces, 
and in this he was the better general of the two. The 
fragments that had come together under the Know- 
Nothing regime were unable to agree upon anyone, 
and the attempt to elect a senator was defeated, which 
was due to the arts of the Gwin-Broderick combina- 
tion. 

The presidential election, which occurred in 1856, .", 
resulted in the election of James Buchanan, although 
the new Republican party exhibited a strength and 
vitality which astonished the country. New York 
gave Fremont a large majority, but the cry of sec- 
tionalism prevented any defection from old party lines 
in the South and West. 

The Kansas trouble had developed into a serious 
conflict between freedom and slavery, which was the 
result of the repeal of the Missouri Compromise, and 
Broderick, who had, as a State senator, opposed 
Stephen A. Douglas, and denounced him as a charla- 
tan and demagogue in the introduction and advocacy 
of the Kansas- Nebraska bill, in 1854, became his 
friend and supporter when he took issue with the ad- 
ministration in opposition to the Lecompton Consti- 
tution, which was a scheme to introduce slavery into 
the territory, and which had been made an adminis- 
tration measure by President Buchanan in deference 
to the wishes of the South. It was while this ex- 
citing question was agitating the country that the 
election of 1857 took place, and the Know-Nothing 
party having subsided as an organization, and its 
members. drifted into the organizations that had be- 
come inevitable under the pressure of the slavery 



BRODERICK AXD GWIN. . 1 55 

agitation, placed the Democratic party again in con- 
trol of the State government. It was during the 
session of the Legislature of 1857-58 that Broderick 
exhibited his mastery in controlling political events. 
He had not a majority in the joint convention of the 
two Houses, but he never hesitated when a mere ob- 
stacle of two men stood in his way, and he set about 
to secure them, using any and every means necessary 
to accomplish the end, and he succeeded in his ambi- 
tion. Having secured so much, his fertile brain sug- 
gested a change in the order of things as established 
by custom. There were two senators to elect, one 
for the short term to succeed Gwin, and one for the 
long term to succeed Weller, whose term would expire 
ihe following March. He called to his counsel his 
trusted friends, who could control the opposition to 
the extreme Southern sentiment, and, when the caucus 
met, the vote was taken to fill the long term first, and 
Broderick was chosen. 

No sooner had he secured the coveted prize, for 
which he had struggled so many years and endured 
so much, than he began to exhibit his crafty and domi- 
neering spirit by demanding the right to name his 
colleague. He had a particular friend in Judge J. W. 
McCorkle, who had served a term in Congress, and 
he proposed at first to make him senator to succeed 
Gwin. Hearing of this, Gwin became alarmed, and 
immediately called a council of his trusted friends. 
It was suggested, and true as suggested, that all Brod- 
erick desired, to satisfy his ambition further, was 
power, and that must come through patronage. To 
succeed himself in the senate, Gwin must bargain 



I 56 LIFE OF DAVID S. TERRY. 

with Broderick, and a secret meeting was arranged 
between them, and Gwin entered into an agreement 
to surrender to Broderick the entire Federal patronage 
of the State with the single exception of one position, 
that of the custom house. The bargain was sealed, 
and the next day Gwin was elected senator. 

Gwin was a long-headed politician. He was well 
aware of the disaffection between Douglas and the 
administration on the Lacompton question, and also 
that Broderick was pledged to the Douglas senti- 
ment and following, and while he may not be known 
in the deal, he would continue to control the Federal 
patronage through Scott, who was an administration 
member of Congress. He knew Broderick's violent 
temper and impetuous nature, and that he would never 
yield one inch to President Buchanan. He was cor- 
rect in his conclusions, for Broderick denounced Bu- 
chanan, and made the breach irreparable. The conse- 
quence was the Gwin-administration element retained 
the Federal positions, and to add to his mortification 
and weaken his hold upon the party in California, 
Weller was Governor, and he promptly set to work to 
pay off old scores by displacing every Broderick man 
in the State government. It was in this condition 
Broderick found himself placed in the second year of 
his senatorship, from which he had confidently ex- 
pected so much to arm him with almost supreme com- 
mand in party matters in his own State. 

Senator Broderick and Congressman McKibben re- 
turned to California after the session of 1859, deter- 
mined to rally their forces against the Lecompton 
administration faction, and Gwin and Scott returned 



BRODERICK AND GWIN. i $7 

to oppose them. It promised to be the hottest cam- 
paign that ever California witnessed. Broderick was 
incensed at Gwin's perfidy and he made his enmity to 
him a personal matter. The conventions met — 
Lecompton and anti-Lecompton. The Lecompton 
convention nominated Milton S. Latham for Gov- 
ernor, and John T. Downey for Lieutenant Governor, 
John C. Burch and Charles L. Scott for Congress, W. 
W. Cope for the Supreme Bench, ignoring the claims 
of Judge Terry for policy's sake, fearing that his 
Know-Nothing record would endanger his election. 
Broderick determined to change the program. It 
was the intention of his followers to nominate Gen- 
eral Redington, but he would not have it so. He 
demanded and enforced the nomination of John 
Curry, who had never been a Democrat and was 
now a Republican. He was a candidate for the 
Supreme Bench in 1857 against Stephen J, Field, 
by whom he was overwhelmingly defeated. John 
Conness was nominated for Lieutenant Governor, 
and Jo. McKibben and Samuel A. Booker for Con- 
gress. Royal T. Sprague was nominated for the 
Supreme Bench. Notwithstanding the bid of Brod- 
erick for Republican support, that party, then in its 
infancy, nominated Leland Stanford for Governor and 
Mr. Kennedy for Lieutenant Governor. They nomi- 
nated Colonel E. D. Baker for Congress and in- 
dorsed Jo. McKibben. Their platform indorsed the 
course of Broderick and McKibben in Congress. 

These nominations being made, the campaign was 
opened with all the vigor and violence that men know 
how to command. Before entering upon the canvass 



*5^ LIFE OF DAVID S. TERRY. 



<^o^<^ 



an incident occurred at the International Hotel break- 
fast table one morning between Broderick and a man 
named D. W. Perley, who had been Judge Terry's 
law partner for several years. Perley had had a duel 
with a man named Henry Marshall in early days, and 
he was a hot-headed Southern man, smart, active, able, 
and not a very scrupulous attorney. The unpleasant 
incident was occasioned by a speech made by Terry 
after his defeat for the nomination for justice of the 
Supreme Court by the Lecompton convention. In 
connection with other candidates he was called upon 
to define his position, and in the course of his re- 
marks he said: — 

"Who have we opposed to us? — A party based on 
no principle, except the abusing of one section of the 
country and the aggrandizement of another; a party 
which has no existence in fifteen States of the Confed- 
eracy; a party whose principles never can prevail 
among free men, who love justice and are willing to 
do justice. What other i* — A miserable remnant of a 
faction sailing under false colors, trying to obta'n votes 
under false pretenses. They have no distinction they 
are entitled to; they are the followers of one man, 
the personal chattels of a single individual, whom 
they are ashamed of. They belong heart and soul, 
body and breeches, to David C. Broderick. They are 
yet ashamed to acknowledge their master, and are call- 
ing themselves, forsooth, Douglas Democrats, when 
it is known — well known to them as to us — that the 
gallant senator from Illinois, whose voice has always 
been heard in the advocacy of Democratic principles, 
who now is not disunited from the Democratic party, 



BRODERTCK AND GWIN. 1 59 

has no affiliation with them, no feeling in common with 
them. Perhaps, Mr. President and gentlemen, I am 
mistaken in denying their right to claim Douglas as 
their leader. Perhaps they do sail under the flag of 
Douglas, but it is the banner of the black Douglass, 
whose name is Frederick, not Stephen."' 

This speech had been published' in the Sacramento 
17711011, which paper Broderick was reading at the 
hotel breakfast table. At the same table were seated 
A. A. Selover and wife, and Mrs. Colonel James. 
D. W. Perley sat opposite to Broderick and the other 
parlies In the course of the conversation, Broderick 
remarked to Perley: — 

" I see your friend Terry has been abusing me at 
Sacramento." To this Perley responded, "What is 
it, Mr. Broderick."*" Broderick's reply, as stated by 
Perley, was in these words: "The damned miserable 
wretch, after being kicked out of the convention, went 
down there and made a speech abusing me. I have 
defended him at times when all others deserted him. 
I paid and supported three newspapers to defend him 
during the Vigilance Committee days, and this is all 
the gratitude I get from the damned miserable wretch 
for the favors I have conferred on hrm. I have hith- 
erto spoken of him as an honest man — as the only 
honest man on the bench of a miserable, corrupt Su- 
preme Court — but now I find I was mistaken. I 
take it all back. He is just as bad as the others." 

Perley asked, " Mr. Broderick, who is it you speak 
of as a 'wretch'.'*" Mr. Broderick replied, "Terry." 
Said Perley, " I will inform the judge of the language 
you have used concerning him." Broderick retorted, 



l6o LIFE OF DAVID S. TERRY. 

"Do so; I wish you to do so; I am responsible for 
it." At this Parley remarked, "You would not dare 
to use this language to him." Broderick answered 
this by a sneer, and the repetition of Perley's "would 
not dare," to which Perley, then becoming incensed 
on his own account, thus responded: " No, sir; you 
would not dare to do it, and you know you would not 
dare to do it; and you shall not use it to me concern- 
ing him. I shall hold you personally responsible for 
the language of insult and menace you have used." 

Colonel Selover, when interrogated as to the lan- 
guage used by Mr. Broderick, stated that he had not 
used the profane expletive " damned," as Perley had 
reported, but in other respects the statement of Perley 
was generally, if not entirely, accurate. 

In this case Perley was as good as his word. He 
hastened to look up a friend to carry a message to 
Senator Broderick. Several declined the service, but 
finally he prevailed upon Mr. Samuel H. Brooks, the 
dear friend of Judge Terry, to bear the letter demand- 
ing apology or satisfaction, with the understanding 
that all subsequent proceedings were to be conducted, 
on the part of Mr. Perley, by his friend. Colonel E. 
J. C. Kewen, then temporarily absent from San Fran- 
cisco. The letter was taken to Mr. Broderick, after 
a refusal on his part to receive a message of such 
character in the manner it came to him, and to it he 
returned this reply: — 

San Francisco, June 29, 1859. 

D. W. Perley, Esq. — Sir: Your challenge of the 27th inst. 

was handed to me last evening, by Mr. S. H. Brooks. This 

morning, between 7 and 8 o'clock, one of the servants at my 

hotel informed me that two gentlemen were below, who desired 



BRODERICK AND GWIN. l6t 

to know if I had risen. I told the servant to say to them that I 
had. The servant returned with a note, purporting to be signed 
by Mr. Brooks, informing me that General E. J. C. Kewen had 
arrived, and desiring me to address any answer I designed to 
your challenge, to General Kewen, instead of to Mr, Brooks. 
This mode of procedure was so unprecedented that I had no 
recourse but to decline the recognition of any note coming, undei 
the circumstances, by the hand of a servant. Subsequently, Mr. 
Brooks and General Kewen called on me in person. At this 
interview, the error committed in sending a note by a servant 
was corrected. 

Two days have elapsed since the alleged insult was given. If 
I had been inclined to recognize your right to demand satisfac- 
tion, you have placed it out of my power to do so, by the pub- 
licity you have given the matter. 

When affairs of this kind are to be arranged, it is customary 
to keep them a secret even from intimate friends. While I have 
refrained from making mention of the affair, I find it to be the 
subject of newspaper comment, and the theme of public conver- 
sation. 

You knew, at the time you were searching for a gentleman to 
bear the challenge, that it would not be accepted. I informed 
you of the fact at the time the alleged insult was offered, in the 
presence of two gentlemen, and in language that could not be 
misinterpreted. 

Your own sense of propriety should have taught you that the 
positions we relatively occupy are so different as to forbid my 
acceptance of your challenge. It is but a few days since you 
made oath that you were a subject of Great Britain. - The giving 
or accepting a challenge could not, therefore, affect your political 
rights, as you are not a citizen of the United States. 

For many years, and up to the time of my elevation to the 
position I now occupy, it was well known that I would not have 
avoided any issue of the character proposed. 

If compelled to accept a challenge, it could only be with a 
gentleman holding a position equally elevated and responsible; 
and there are no circumstances which could induce me even to 
do this during the pendency of the present canvass. 

When I authorized the announcement that I would address 



1 62 LIFE OF DAVID S. TERRY. 

the people of California during the campaign, it was suggested 
that efforts would be made to force me into difficulties, and I 
determined to take no notice of attacks from any source during 
the canvass. 

If I were to accept your challenge, there are, probably, many 
other gentlemen who would seek similar opportunities for hostile 
meetings, for the purpose of accomplishing a politi'cal object, or 
to obtain public notoriety. I cannot afford at the present time 
to descend to a violation of the Constitution and the State laws 
to subserve either their or your purposes. 

Your efforts to give publicity to the fact that It was your in- 
tention to send me a challenge, would justify me in giving a 
copy of this reply to the public. Circumstances will determine 
my course in this regard. Yours, etc., 

D. C. Broderick. 

Judge Terry was of Southern nativity and rearing. 
His principles and sympathies in political matters 
were intensely Southern. He was not. however, nor 
had he ever been, a supporter or personal friend of 
Dr. Gwin. Bt^tween himself and Mr. Broderick, 
although the two differed so widely in political asso- 
ciation and belief and sectional prejudices, there had, 
nevertheless, existed a fair if not warm degree of per- 
sonal respect and mutual admiration. Broderick hon- 
ored Terry for his incorruptible integrity as a public 
officer and citizen, and Terry admired Broderick for 
his determination and courage. Judge Terry was not 
involved In the campaign, as his judicial position for- 
bade his appearance as a stump speaker; and he was 
not a candidate before the people, as Judge Cope had 
received the nomination over him. It was his first 
and last public commentary upon the political situa- 
tion that year. 

At that time Mr. Broderick was immersed in the 



BRODERICIC AND GWTN. 163 

preparation for the hot canvass he had resolved to 
make. Naturally disposed to strong condemnation 
of whatever he disliked in public matters, and sensi- 
tive to anything which affected his own conduct or 
character, the remarks of Judge Terry, when reported 
to him, caused him much irritation. 

Viewed in clear light, at this time, when prejudice 
and passion have passed out of the public mind, and 
the case can be reviewed in an impartial manner, it 
appears inconsistent with the sentiments expressed by 
Mr. Broderick, in his letter to Mr. Perley, that, recog- 
nizing the dueling code, and aware, as he intimates he 
was, that "efforts would be made to force" him "into 
difficulties " of the nature of that then before him, he 
should have rendered himself obnoxious to such efforts 
by the use of the harsh terms in which he spoke of 
Judge Terry at the International Hotel breakfast table, 
in conversation with Perley, whom he recognized as a 
friend of Terry. It was personal, offensively personal; 
and, as he betrayed before the heated colloquy ended, 
it was intended, manifestly, to be personal. The prov- 
ocation he had, from Terry's remarks in the Lecomp- 
ton Convention, was not of a character to justify 
personal replication. Terry's language was directed 
mainly against the party of which Mr. Broderick was 
the acknowledged leader, and, incidentally, his relation 
to that party was mentioned. But it was simply an 
exclusively political, public mention and charactf.riza- 
tion, clearly within the limits of ordinary and fair 
debate or allusion, and without the ingredient or tinge 
of personality. At the very worst, it in nowise re- 
flected upon the character or upon the political stand- 



164 LIFE OF DAVID S. TERRY. 

ing of Mr, Broderick in point of integrity or honor. 
But Mr. Broderick's language concerning Judge Terry 
was very harsh, very offensive, in a personal sense; 
and, in respect to the exalted position he occupied, as^ 
chief justice of the Supreme Court of the State, it was 
intolerable to one who, in such position, was inspired 
with a just sense of the great dignity of the station it- 
self, and a proper appreciation of the high duty he 
owed to his associates upon the bench, and the spirit 
which was due from him in upholding and vindicating 
the unsullied majesty of the law in its loftiest temple in 
the State. For it is not with the judiciary, as it is with 
the legislative or executive branches of the govern- 
ment. These are, from their nature and composition, 
political and partisan, favoring their friends, and, in 
• greater or less degree, used against their enemies. 
It is a common right, or, at least, a common privi- 
lege everywhere exercised, in monarchies and absolute 
governments, as well as in republics, therefore, to 
criticise and assail public men in political office, and to 
charge them with dishonesty, dereliction and corrup- 
tion. But the judiciary is not political; it should never 
be partisan or partial in any respect ; and to impugn 
the integrity of the judges, or to assail the court itself, 
is, in every civilized community, justly viewed as the 
most dangerous of the qualities of unbridled or licen- 
tious speech or utterance in any form. And the de- 
gree of harm and censure must be held in due propor- 
tion to the source of impugnment or attack. That 
which should come from the lips or pen of one low in 
the scale of community respect would pass only for its 
insignificant worth ; but that which flows from men in 



-BRODERICK AND GWIN. 165 

lofty Station and of exalted character is likely to inflict 
injury beyond repair, and to blast reputation beyond 
redress. It was a senator of the United States; the 
foremost leader of a formidable element in the State; 
the acknowledged champion of the wing of the De- 
mocracy he led in that extraordinary contest ; the 
bravest and boldest of them all, who had aspersed the 
character of the chief justice of the State, and by insin- 
uation, if not directly, declared him to be "a miserable 
wretch," not an "honest man," but only one of "a 
miserable, corrupt Supreme Court," one "just as bad 
as the others" on that bench. And the eminent pub- 
lic man who thus stigmatized the Supreme Court, and 
who singled out the chief justice for his strong per- 
sonal denunciation, had earned and long borne the dis- 
tinguishing attribute to true greatness and worth; the 
glorious praise that his word was always sacred; that 
he never broke his faith; that all that came from his 
lips was stamped with the genuine seal of incontest- 
able truth. It was in this light that the world must 
ever view the subject in conformity with reason and 
right. It was in such light that the object of Mr. 
"Broderick's strong language viewed it; and thence 
proceeded the catastrophe to which we now come in 
the conclusion of this drama. 



CHAPTER XXIII. 

Broderick's Charges — Gwin's Rejoinders — Lat- 
ham's Denials — The Scarlet Letter — Dark 
Forebodings. 

Broderick opened the campaign in Sacramento on 
the ninth day of August, before an immense audience 
which was presided over by General Redington. The 
capital city had never witnessed such an outpouring 
of the people. Broderick, while not an orator, and not 
happy in his address, was extremely forcible in the 
presentation of his subject. The people overlooked 
his lack of graces of rhetoric and applauded every 
stinging, pungent, caustic thrust and weighty stroke 
he gave his three conspicuous foes. It was the open- 
ing of the charge and countercharge of rankest politi- 
cal foulness, dishonor, and corruption. It compro- 
mised himself, but he cared not for this; it laid bare the 
conduct and rottenness and foulness of his contemned 
adversaries, and with this he was content. He opened 
his speech in the following language: — 

"I come to-night to arraign before you two great 
criminals, Milton S. Latham and William M. Gwin. 
Latham has denied the charge made by me, on the 
authority of Tilford, that he had stolen, or caused to 
be stolen, the letter given by him (Latham) to Tilford, 
as a recommendation for collector of the port of San 
( i66 ) 



BRODERICK AND GWIN. 1 6/ 

Francisco, and a statement has been obtained from 
Tilford which, while he denies no facts stated by me, 
is designed to involve in obscurity and doubt the facts 
of the case, I have stated that Tilford came to me 
and said that a pledge had been given to him by 
Latham, that Latham, or someone deputed by him, 
had afterwards come to his (Tilford's) room and stolen 
the same. Tilford does not deny this, nor that he 
then therefore urged me to defeat Latham; but he 
says that he discovered his error in time, and came to 
me to tell me that the letter had been recovered, and 
that he had taken back the charge against Latham in 
consequence. It is true that he did come to me and 
tell me that the letter had been recovered and returned 
to him, but I never knew that he withdrew the charge 
against Latham until he gave the latter the whitewash- 
ing letter of February 29, which made its appearance 
in Nevada City." 

To corroborate his statements in relation to Tilford 
and Latham, Mr. Broderick then read this letter: — 

Oroville, August 5, 1859. 

Hon. David C. Broderick — Dear Sir: I am in receipt of 
your note inquiring of me the facts, as I may recollect them, in 
regard to the election of United States senators in 1857. My 
recollection of the main features of the election is perfect and dis- 
tinct. After your election, General Estill, Mr. Conness, and 
myself met in a room for the purpose of consultation. After 
thoroughly canvassing the sentiments and inclinations of the vari- 
ous members of the Legislature as to your colleague, I became 
satisfied that my own election was impossible. 

The next question considered was whom we. should support, 
and we came unanimously to the conclusion to support Mr. 
Latham. This fact was, as I was informed, communicated to 
Mr. Latham, and his election was considered certain by our 



1 68 LIFE OF DAVID S. TERRY. 

friends; and I have always thought that such would have been 
the result if Mr- Tilford had not interrupted the arrangements by 
charging, as he did, both privately and publicly, that a certain 
document given him by Latham had been spirited away. Mr. 
Tilford was very much excited about it, and indignant; and 
I understand from your language and manner that you were 
similarly affected. You stated that Mr. Tilford was and had been 
for a long time your devoted and effective friend, and that you 
would not support Latham; that you would support Gwin first. 
I refused to consent to the election of Dr. Gwin, and never did 
withdraw my opposition. 

There are many other points connected with the election of 
United States senator; but what I have stated appear to me to be 
all that is necessary to notice as the question now stands. 

Respectfully yours, etc., Jo. W. McCorkle. 

Mr. Broderick had stated in speeches elsewhere in 
the State that Mr. Latham and Dr. Gwin had each 
and alike separately agreed to surrender to himself the 
distribution of Federal patronage under the Buchanan 
administration, so far as either of them was concerned, 
in the event of an election, in case he should aid the 
one or the other in securing the senatorship for the 
short term. This statement Dr. Gwin and Mr. Latham 
had alike denied, and they cited to disprove it, simi- 
larly, this strong declaration from Mr. Broderick's let- 
ter of June 6, 1857, to General Redington and Mr. 
J. P. Dyer: "Between Mr. Gwin and myself there 
was no condition whatever in regard to the distribu- 
tion of patronage. I learned, subsequently, however, 
that he had agreed with others to take no part in 
the recommendation of a single Federal of^cer." And 
again, from the same letter, this more comprehensive 
asseveration: "My own election was without bargain, 
contract, alliance, combination, or understanding with 



BRODERICK AND GWIN. 1 69 

anyone, over a combined opposition of which Dr. 
Gwin was the head and front. After my election he 
sought my aid to secure his own. I challenge my 
enemies to produce a man within the length and 
breadth of the State whom I ever deceived, or to 
whom I ever falsified my word." 

These declarations, it was contended by Gwin and 
Latham, were traversed by the later statements of Mr. 
Broderick, both as concerned his own election and his 
participation in electing Dr. Gwin, and in respect to 
the arrangement in regard to the Federal patronage; 
also as to the alleged agreement to the same effect with 
Latham — for, if he had made such terms with Latham, 
it was himself who had practiced deception and failed 
to keep his word, inasmuch as he afterwards engaged 
with Gwin to elect him and thereby to defeat Latham. 
But Broderick had foreseen this line of denial, and to 
meet and oxercome it he had taken the precaution 
to secure these letters to substantiate his own word 
whenever the occasion occurred: — 

San Francisco, January 20, 1857. 
Hon. D. C. Broderick — Dear Sir: In answer to your 
communication relative to what occurred between the Hon. M. S. 
Latham and yourself on the night of the 12th of January, 1857, 
and in connection with the senatorial contest, I have to say 
that I was requested by Mr. Latham to see you, and say that 
he authorized me to draw a written agreement, in which he 
would consent that the patronage of California should be exer- 
cised for yourself, so far as he was concerned, with the exception 
of a single promise he had made to Hon. C L. Scott concerning 
the United States marshalship. He also said there were two 
other appointments he would like to see made, but they should 
both be subject to your approval. 

I am, sir, very respectfully your obedient servant, 
1 2 James M. Estill. 



170 LIFE OF DAVID S. TERRY. 

San Francisco, January 18, 1857. 
Hon. David C. Broderick — Dear Sir: It was always un- 
derstood that, in the event of Mr. Latham's election, you should 
have the control of the Federal patronage in California. Such, 
at least, was the belief of myself and others; and this belief was 
derived from the remarks of Mr. Latham on several occasions, 
and I am confident he will not deny the truth of the above state- 
ment. I saw no impropriety in such an agreement on his part, 
as your more enlarged experience in politics, and thorough ac- 
quaintance with the men of California, made you the more suit- 
able adviser of the Federal government in this matter. 

Very respectfully, Frank Tilford. 

Mr. Broderick then explained why he had not sup- 
ported Latham for election as senator, to this ef- 
fect: "Latham had deceived and endeavored to be- 
tray me, and I had no one to select other than Latham 
or Gwin. McCorkle was my first choice, whom I 
preferred to any other in the State," But he went 
on to say he had entertained propositions from Latham, 
and he stated that Latham had finally come to see him, 
in disguise, and that he waited his opportunity to do 
so in concealment, in a water-closet, in order that the 
person then in conversation with himself (Broderick) 
in his room might not see and recognize him (Latham) 
on his awkward and humiliatino- "errand. But Mr. 
Broderick was careful to avoid mention, and he felt sure 
that Mr. Latham would not then recall the fact, that, 
in arranging the plan of election, so as to bring off the 
election of the long term, for which only himself and 
Weller were candidates, he had sought and procured 
the assistance of Mr. Latham's friends, without whom 
the plan could not have been consummated, and his 
election would have been once more in doubt, inas- 



BkODERICK AND GWIN. I7I 

much as it would have depended very much on the 
wish or intimation or dictation of the successful candi- 
date for the short term, chosen in the regular order of 
things; and at that time Mr. Broderick lacked really 
two votes of a majority m caucus to nominate him. 
Dr. Gwin was practically bound, by the mutual agree- 
ment that had been made with Mr. Broderick, in 
April, 1856, to favor his election as his own colleague 
in preference to Weller; but, meanwhile, Gwin had dis- 
covered Broderick's real preference for McCorkle, and 
this might have inspired him to similarly break faith 
with Broderick. 

Broderick prosecuted the canvass in the same fierce 
spirit he had manifested at Sacramento, in every por- 
tion of the State — at Yreka, at Shasta, at Quincy, in 
Plumas County, at Santa Rosa, and elsewhere. At 
the latter place he repeated the whole story of the bar- 
gaining of Latham and Gwin with him, and of the self- 
debasement of each to himself; and then, with prideful, 
gloating spirit and ineffable scorn, he declared, in his 
harsh, fierce, impulsive manner* "I had then my 
commission as United States senator in my pocket, 
when old Gwin came begging at my feet for favor and 
help. I remembered all that he had said and done 
against me, and before I would have refrained from 
my opportunity to humiliate him, I'd have torn my 
credentials into pieces, and thrown them in the fire!" 
Everywhere he proclaimed that "Gwin was dripping 
with corruption." And as the cap sheaf, to heap coals 
of fire upon him and involve him — himself in great 
degree included — in inextricable toils, he read this 
from Dr. Gwin's own hand; — 



f/i LIFE OF DAVin S. TERRY. 

Sacramento City, January ii, 1857. 
Hon. D. C. Broderick — Dear Sir: I am likely to be the 
victim of the unparalleled treachery of those who have been 
placed in power by my aid and exertion. The most potential 
portion of the Federal patronage is in the hands of those who, 
by every principle that should govern men of honor, should be 
my supporters instead of enemies, and it is being used for my 
destruction. My participation in the distribution of this patron- 
age has been the source of numberless slanders upon me, that 
have fostered a prejudice in the public mind against me, and 
have created enmities that have been destructive to my happiness 
and peace of mind for years. It has entailed untold evils upon 
me, and while in the Senate I will not recommend a single indi- 
vidual to appointment to office in the State. Provided I am 
elected, you shall have the exclusive control of this patronage, so 
far as I am concerned; and in its distribution I shall only ask 
that it may be used with magnanimity, and not for the advantage 
of those who have been our mutual enemies, and unwearied in 
their exertions to destroy us. This determination is unalterable; 
and in making this declaration I do not expect you to support 
me for that reason, or in any way to be governed by it; but as I 
have been betrayed by those who should have been my friends, 
I am in a measure powerless myself, and depend upon your mag- 
nanimity. Very respectfully, your obedient servant, 

Wm. M. Gwin. 

This was the letter of self-debasement, of most piti- 
ful humiliation, he had extorted from Dr. Gwin the 
night that the latter had gone to Broderick's room in 
the Magnolia House, attended by a single trusty friend, 
and no one else, save Broderick's close-mcu'ched man- 
ager, A, J. Butler, to see what was going on. The 
letter was intended for Broderick's sole knowledge, 
sight, and possession; but he had committed it, not- 
withstanding his pledge to the strictest privacy, to the 
custody of W. J. Ferguson, and from his possession, 
before his death, it had fallen into the hands of Gen- 



BRODERICK AND GWIN. ly^ 

eral Estill, and thence returned to the keeping of Mr. 
Broderick, for the public use he was making of it. At 
the time it was known as the "scarlet letter," so char- 
acterized from the "scarlet letter" worn upon the 
bosom of Hester Pryne, in Hawthorne's celebrated 
book with that title. 

But Dr. Gwin did not allow these attacks by Brod- 
erick upon himself to pass unanswered, or without 
vigorous and scathing denial and denunciation. If 
he did not meet Broderick at any of his appoint- 
ments, he visited nearly every place where Broderick 
had gone, and there and elsewhere he assailed and 
execrated him In the most violent language he could 
use. At Yreka he said: — 

" Broderick's remarks about the senatorial election 
are a tissue of falsehoods from beginning to end. The 
main portion of his statement about Latham is false. 
Latham was a victim to Broderick's villainy in that 
contest. Under a garb of friendship, he concerted a 
conspiracy against me that is without a parallel in this 
or any other State. He deceived me, and then tried 
to ruin me, but I turned upon him and his minions, 
and I will pursue them as long as I live. I acknowl- 
edge with shame that for a time I was deceived by 
him, and I am willing to atone for it in sackcloth and 
ashes. , . . He intended to defeat my nomina- 
tion, while professing to be my friend, to the very 
moment when it was made in caucus. He challenged 
me to this discussion. We will see if he will challenp-e 
me again to meet him, after what I have said to-night. 
He has returned home disgraced and dishonored, 
while I hold a position in the party that elected me of 



174 LIFE OF DAVID S. TERRY, 

which any man may be proud. He will slander and 
lie upon me. It is his avocation, but I will survive it 
now, as I have survived it heretofore. He acknowl- 
edges that he was in the market." 

Dr. Gwin's assertion that Broderick had designed 
to defeat his nomination all the time he professed to 
be his friend, up to the moment the caucus chose him, 
was derived on Wednesday evening, January 13, 1857, 
the day following Gwin's election in joint convention, 
from Don Pablo de la Guerra, senator from Santa 
Barbara. He was a gentleman of unquestioned pro- 
bity and honor, and had steadfastly supported Mr. 
Broderick since 1854, all the time opposing G win. ^^ 
caucus he had voted for McCorkle, until, as he stated, 
Mr. Broderick had requested him, on Monday morn- 
ing, January 1 2, to change his vote to Dr. Gwin. Don 
Pdblo gave promise to do so, and he was not a man 
to break his- word. But that evening, a short time 
before he went to the caucus, Mr. Broderick requested 
him to withhold his vote for Gwin. He told Mr. 
Broderick it was now too late, as his word was pledged 
to support Gwin. And he further stated, in relating 
the circumstance, that that same evening Mr. Broder- 
ick, at the urgent solicitation of Mr. Conness and oth- 
ers who favored Mr. Latham in preference to Gwin, 
endeavored to defeat the nomination which he had at 
an early hour that morning promised to the ex-sena- 
tor. It was this timely information, before Gwin de- 
parted for Washington, in the winter of 185/, which 
caused him to act as he did when the new administra- 
tion came in in March, with respect to the Federal 
appointments for California, and to doubt evermore 
the sincerity or fidelity of Mr. Broderick to his pledges. 



BRODERICK AND GWIN. 175 

Out of this exasperating war, and exchange of 
crimination and recrimination, which continued during 
the entire campaign, the most disagreeable and very 
hostile results were generally anticipated, of a per- 
sonal as well as a political character. The settled 
conviction in the community in all parts of the State 
was, after the language which had been exchanged 
between Senators Broderick and Gwin upon the 
stump, that there would be — there could be — no alter- 
native except a hostile meeting on what, in that code, 
is termed the "field of honor," Such meeting never 
came. The fates had otherwise ordered. The Black 
Friday of Broderick's election loomed into confirma- 
tion of the ancient malific superstition concerning that 
fateful day. 



CHAPTER XXIV. 

Dueling in California — Broderick's Ideas and 
Practice — His Courage and Determination 
— The Crisis Aproaching. 

The public sentiment of California was averse to 
dueling; but, from the earliest period of the inrush 
consequent upon the gold discovery, that mode of sat- 
isfying^ or redressing personal affronts and grievances 
had prevailed; and the same community which, on 
other occasions, would denounce the code as "a relic 
of barbarism," was, singularly enough, the readiest to 
stigmatize as a coward, and socially or politically to 
ostracize, the public man who should decline to adopt 
this "barb irous" method of avenging his own honor, 
or of sustaining his own personal utterance against 
the one who should feel aggrieved thereat. Mr. Brod- 
erick was never a duelist by training or disposition. ' 
In his early rough life, as a tough fighter in the fre- 
quent conflicts of the New York volunteer firemen, 
he had followed the custom of his class, and depended 
upon his fists and physical strength and endurance; or, 
if weapons were resorted to, in desperate extremities, 
they were the tools and implements of the firemen, 
wrenches, spanners, trumpets, pipes, hose butts, etc.; 
but pistols and knives were never used. He was 
courageous, and naturally disposed to stand his ground, 
( 176 ) 



I 



BRODERICK AND GWIN. 177 

or to meet force by force, no matter what the circum- 
stances. He never adapted himself to the changes he 
found in other communities from the habits and cus- 
toms in which he had been bred and become settled; 
but he nevertheless boldly faced and bravely accepted 
any alternativ-e in preference to allowing impeachment 
or question of his personal courage and fearlessness. 
Hence, when he had resolved to enter upon public 
life in California, under the new and novel and unpar- 
alleled condition of. society and community matters, 
he also determined to meet every emergency, and to 
face every peril, which the wild recklessness of the 
period and the exigency of the occasion required, in 
such manner as to gratify the most combatant of his 
friends, and to satisfy the demands c f the most daring 
of his foes. He would, by this course, maintain his 
long enjoyed reputation as a fearless and intrepid 
leader; ready to meet and surmount any difficulty or 
danger as a brave man should, among his friends and 
followers; and, moreover, he would command the re- 
spect and extort the admiration of his opponents and 
enemies. 

Broderick found himself cast among a controlling 
element of different training and methods of life, in 
regard to community and public life. Affronts were 
answered or avenged by a resort to deadly weapons, 
either in street encounters or upon the dueling field; 
and to refuse, or to fly from this mortal arbitrament 
of the times, was equivalent to self-imposed exile, or 
certain to proscribe the "craven" from the society, and 
beneath the decent respect of this ruling element, 
which had always been accustomed to appeal to these 



1^8 LIFE OF DAVID S. TERRY. 

means of satisfaction or redress for personal wrongs 
and personal grievances. 

It was not in his nature to evade or turn from what- 
ever challenged his courage, or invited him to combat, 
in any form. And, as he was inexperienced and inex- 
pert in the use of weapons, he applied himself to the 
mastery of their use with the same determined assi- 
duity and commanding spirit which ever characterized 
his more important actions and movements. His 
duel with Judge Smith could have been easily avoided 
without reflection upon his bravery or his honor; but 
he appeared to be inspired with the resolution that the 
"chivalry" element should be taught to know and to 
appreciate the fact that a "Northern man" could not 
be deterred from his purpose or overcome by mortal 
fear, even though life itself must pay the reckoning; 
and he went upon the field more to prove this than 
to attest his own fearlessness of death. He fought 
that duel, in fact, not so much to give satisfaction to 
his antagonist, as to vindicate the bravery of the 
Northern element he then represented, of which he 
aspired to be the most powerful and most honored 
representative. But in that duel he became duly cog- 
nizant of the necessity forced upon him of mastering 
the use of weapons to the utmost of his ability; and 
thereafter he applied himself to such purpose that he 
became really one of the best, if not unmatched, in 
pistol practice in the State. Yet, while he thus mas- 
tered the use of the deadly weapon, and although he 
was sensible of his peril in dueling and rose above it, 
he could never so control his nervous system as to fit 
himself in the very best and essential form for the ter- 



BRODERICK AND GWIN. 1^9 

rible ordeal of the field; and this lack of power was 
painfully visible to his friends, upon the occasion of 
his duel with Judge Smith. He could have impet- 
uously led a multitude in the very jaws of death, with- 
out the relaxation of a fiber, with fiercer courage as the 
peril became imminent; but he could not command 
that prodigious and yet singularly delicate nervous 
force of his, which made his passion so grandly ter- 
rible, his nature so exceedingly sensitive, so as to be 
the creature of absolute composure, which the duelist 
must be, in his place of mortal peril. 

The election occurred Wednesday, September 7. 
The Democrats carried the State. Broderick and the 
Republicans were badly defeated. The administra- 
tion was strongest. From the nature of -the cam- 
paign, and the extraordinary circumstances which had 
attended it, of terrible charge and countercharge, the 
character of crimination and recrimination, and the 
malignancy of the personalities, on the part of Senator 
Broderick and Gwin, coupled with' the significant in- 
timation of Mr. Broderick in his reply to Perley's 
hostile message, in June, that he should hold himself 
in readiness, after the campaign, to suitably respond 
to any call or demand that might then be made upon 
him, to answer for whatever he had uttered or might 
utter of a personal nature in regard to anyone — al- 
though he should decline to do so until that time — 
the public had been led to expect a hostile meeting 
between the two senators, and the most intimate 
friends of Mr. Broderick, those closest in his confi- 
dence and more given to open avowal of their views 
and sentiments, encouraged rather than deprecated 



l8o LIFE or DAVID S. TERRY. 

this common expectation, so far as their champion 
was himself concerned. It was notorious that Mr, 
Broderick had become, by assiduous and skillful train- 
ing, one of the best pistol shots in the State; that he 
shot with surprising accuracy and with uncommon 
rapidity of glance; and that in the event of a duel, in 
which he should be the challenged party, with the 
prerogative to choose the weapons, then- was not a 
man living who could excel, if any could equal, him 
in the quick and accurate discharge of a pistol. It 
was quite as notorious that Dr. Gwin .was not a skill- 
ful pistol shot; that the rifle was his favorite weapon 
(it was with rifles that he and Judge McCorkle fought 
in 1853); and that he had neither the alacrity nor 
accuracy of Broderick. And as the duel, if duel there 
should eventuate, as everybody expected, should occur 
between the two fiercely hostile senators, there was a 
general acquiescence in the belief of Broderick's friends 
that he would not be the one, should harm befall, to 
leave the field the loser or victim. 



CHAPTER XXV. 

Tragic Ending of the Campaign — Chief Justice 
Terry's Demand — Broderick's Refusal — Mor- 
tal Combat — Broderick Falls. 

An unexpected turn was suddenly given to this 
general expectation as to the individuality of the par- 
ties, or, at least as to the challenging party. Chief 
Justice Terry had felt himself deeply offended at the 
language which Senator Broderick had used in respect 
to his character as a citizen and his uprightness as a 
judge, in the conversation with Perley at the Inter- 
national Hotel breakfast table in June, and, at the 
moment he became aware of it from the newspa- 
per reports, which published it to the world, he had 
resolved to ask explanation or demand apology or 
redress; but the subsequent declaration of Mr. 
Broderick, that he should not answer for any of his 
utterances then, or during the campaign, caused him 
to desist at the time, and to avail himself of the sig- 
nificance of Mr. Broderick's language, to the effect that 
after the election, he would not decline proper action 
in such matters. The election was now as good as 
over, and, accordingly, his time for the purpose he 
had resolved upon was immediately at hand. He left 
his residence in Sacramento, determined upon his 
unhappy missio'n, which he considered imperatively 
imposed, inasmuch as his assailant was a man of ex- 

(i8i) 



I02 Life of david s. terry. 

alted position, of national character, whose reputation 
for truthfulness, candor, boldness of speech, and un- 
daunted courage, was of the highest order; and to 
refrain from calling him to account for the blasting 
nature of his language would be interpreted by the 
people, and accepted by the world, as self-admission 
of the worst charged against him; or, that which was 
equally unendurable to a brave and honorable man, 
possessed of manly spirit, as a public confession of 
that craven quality which impels its despicable pos- 
sessor to submit to any wrong or insult or degrada- 
tion sooner than to attempt vindication or demand 
redress, through abject fear of the consequences. 
Judge Terry was not of such debased stamp. Equally 
with Mr. Broderick, he preserved his honor as a man 
above all else, and was ever resolute in its vindication. 
He was not experienced in the use of pistols, as he 
was with the rifle, and had never witnessed but one 
duel, that in which he had acted as the second of D. 
W. Perley, in Stockton, in 1850. 

While he felt that the language of Broderick was 
without sufficient provocation, and that Broderick was 
more in pursuit of Gwin, he was equally determined 
that it should not stand against him. In consulting 
with a few of his intimate friends, they all agreed that, 
as Broderick had been friendly toward him, and was 
of a generous disposition, rather than enter into a per- 
sonal conflict, he would see the error into which he 
had fallen in a moment of petulancy, and would re- 
tract or modify his language in order to avoid a duel. 
Acting on this reasonable supposition, Judge Terry 
wrote out his resignation, without date, and handed it 



TERRY AND BRODERICK. 1 83 

to his friends, with instructions to withhold it until the 
negotiations determined the result. He then went to 
Oakland, and on the eighth day of September, 1859, 
addressed a letter to Broderick and sent it by the hand 
of his chosen friend, Calhoun Benham, as follows: — 

Oakland, September 8, 1859. 

Hon. D. C Broderick — Sir: Some two months since, at the 
public table of the International Hotel, in San Francisco, you saw 
fit to indulge in certain remarks concerning me, which were offen- 
sive in their nature. Before I had heard of the circumstance, 
your note of 20th of June, addressed to Mr. D. W. Perley, in 
which you declared that you would not respond to any call of 
a personal character during the political canvass just concluded, 
had been published. 

I have, therefore, not been permitted to take any notice of those 
remarks until the expiration of the limit fixed by yourself. I now 
take the earliest opportunity to require of you a retraction of 
those remarks. This note will be handed to you by my friend. 
Calhoun Benham, Esq., who is acquainted with its contents, and 
will receive your reply. D. S. Terry. 

Mr. Benham waited upon Mr. Broderick, delivered 
the above note, and had brief conversation with him 
in respect to it. Mr. Broderick remarked that he 
would give the matter attention the next day. Mr. 
Benham suggested the propriety or urgency of quicker 
action. And, after retiring from Mr. Broderick's pres- 
ence, addressed to him this note: — 

San Francisco, September 8, 1859. 
Hon. D. C. Broderick — Sir: Should you have occasion to 
communicate with me sooner than the time agreed upon between 
us, I will be found at the Metropolitan Hotel. I omitted to leave 
my address this morning. 

Very respectfully your obedient servant, 

Calhoun Benham. 



184 LIFE OF DAVID S. TERRY. 

Mr. Broderick's response to judge Terry's note was 
in this form: — 

San Francisco, September 8, 1859. 
Hon. D. S. Terry — Sir: Your note of September 8 reached 
me through the hands of Mr. Calhoun Benham. The remarks 
used by me in the conversation referred to may be a subject 
of future misrepresentation ; and, for obvious reasons, I have 
to desire you to state what were the remarks that you designate 
in your note as offensive, and of which you require of me a re- 
traction. I remain, etc., D. C. Broderick. 

This note w^as a surprise to Judge Terry. The con- 
versation with Perley at the International Hotel, in 
which Senator BroJerick had uttered the offensive 
language concerning judge Terry, had been published 
broadcast over the State, and Mr. Broderick himself 
could not be ignorant of it. He had impugned the 
honor and impeached the judicial integrity of Judge 
Terry; and the extraordinary utterance, from so high 
a source, had been made the subject of common talk 
everywhere. Judge Terry had expected a different 
answer. That which he sought was simply the re- 
traction of the offensive language; a retraction such as 
honorable men feel bound to make for language used 
in an impulsive moment, under the influence of tempo- 
rary passion, or when unduly aggravated to sudden 
angry outburst; a retraction which many brave and 
honorable men hasten themselves to offer, when sober 
reflection and cool judgment return, and their better 
nature prompts them to make proper amend for words 
that cannot be honorably justified or persisted in. And 
it is now known, upon the statement of some of Mr. 
Broderick's most intimate friends, who were then in 
confidential intercourse with him, called in to discuss 



TERRY AND BRODERICK. 1 85 

and give counsel upon the delicate matter at issue, 
that Mr. Broderick's own impulses and sentiments were 
in accord with theirs, in viewing the situation in this 
light. One or two of these true friends insisted that 
the requirement of Judge Terry was simply fair and 
proper — no more than Mr. Broderick himself would 
demand, were their positions changed. They pro- 
tested against the draft of the note, as it was at last sent 
to Judge Terry; for they foresaw that it might shut the 
door to any accommodation of the difficulty, and lead 
to a hostile meeting, for which there was no just occa- 
sion; while the onus of such a meeting would rest 
upon the willful refusal of a proper and strictly honor- 
able retraction, or disavowal of intention to offend, 
which must be interpreted as a determination to ad- 
here to the offensive language and all that it implied 
or conveyed. At that precise point the difficulty 
ought to be adjusted, these ardent friends protested, as 
it was the precise point at which it could most readily, 
properly, and, with mutual assurances of former respect 
and good feeling to restore past friendly relations be- 
tween the two, be brought to amicable adjustment. 

Unfortunately, these wise and earnest counsels did 
not prevail. In the confidence of Mr. Broderick, at 
that time, and in constant intimate intercourse with 
him, were other men of less prudent and more ag- 
gressive nature. They were unquestionably devoted 
to him, and some of them were ready to peril even 
life in his cause, if need be; but they held human life, 
even his, at the reckless rate in which too many had 
valued it in early California days, when it was con- 
sidered braver to persist in a wrong, to the extremity 
13 



l86 LIFE OF DAVID S. TERRY. 

of the " field of honor," than it was to show the higher '- 

courage and purer honor which requires just and hon- ; 

orable redress for injuries or affronts, which are some- i 

times more the result of circumstances and hasty ac- ] 

tion, or intemperate speech, than the disposition to ' 

harm, or the intention to offend. These imprudent ] 

and hot-tempered friends very well knew the great ] 

expertness and extraordinary a curacy of Mr. Brod- i 

crick's pistol practice in the shooting galleries; and ' 

they were also aware of his fierce courage. They 1 

could not but have known, furthermore, of the irre- ': 

pressible nervousness which the prodigious mental ., 

and physical strain of the campaign, superadded to i 

the enormous drafts upon his system, which his amaz- i 

ing struggle for the senatorship had occasioned, that ; 

struggle which had continued incessantly through five : 

or six weary and most anxious years, and which had ' 

visibly wrought its ill effects upon his once robust 1 

constitution — a nervousness in no respect the creature ' 

of fear, but the consequence, solely, of extorting from j 

nature that much beyond her power to healthfully ; 

yield or healthfully withstand. They felt absolute •' 

confidence in his coming from any hostile encounter ■' 

the victor, instead of the victim ; and, besides this 1 

questionable assurance, they were in great degree '■ 

actuated in forcing the issue — as they did finally force \ 

it — by the determination to prove to the "chivalry" ' 
that Broderick, as the acknowledged chief and boldest 

champion of the Northern element, was as ready to ; 

fight as the bravest of the Southern leaders. Allow- ■ 

ing himself to be swayed by these rash and reckless ^ 

advisers, Mr. Broderick at last cpncluded to reply to ; 



TERRY AND BRODERICK. 1 87 

Judge Terry's note as he did. It was followed by 

this: — 

San Francisco, September 9, 1859. 
Hon. D. C. Broderick — S/r: In reply to your note of this 
date, I have to say that the offensive remarks to which I 
alluded in my communication of yesterday are as follows: "I 
have heretofore considered and spoken of him [myself] as the 
only honest man on the Supreme Court bench; but I now take 
it all back" — thus, by implication, reflecting on my personal and 
official integrity. This is the substance of your remarks, as re- 
ported to me; the precise terms, however, in which such an 
implication was conveyed are not important to the question. 
You yourself can best remember the terms in which you spoke 
of me, on the occasion referred to. What I require is the re- 
traction of any words which were used calculated to reflect on 
mv character as an ofiicer or a gentleman. 

I remain your obedient servant, D. S. Terry. 

In this second note of Judge Terry's is apparent 
the disposition to refrain from pressing the difficulty 
to a hostile conclusion. He waived, or did not appear 
to heed, the patent fact that Mr. Broderick must him- 
self have been perfectly aware, at the time he ad- 
dressed his note of inquiry, as 10 the language deemed 
offensive by Judge Terry, just what that language 
was, and its nature and manifest meaning; and he 
thus presented still another opportunity to Mr. Brod- 
erick for the honorable retraction required, or such 
disavowal of any intention to offend or impugn the 
integrity of Judge Terry, as would have closed the 
correspondence, and led to mutual friendly explana- 
tion and renewed amicable relations. But this is the 
spirit in which it was received and answered: — 

Friday Evening, 9th September. 
Hon. D. S. Terry — Sir: Yours of this date has been received. 
The remarks made by me were occasioned by certain offensive 



1 88 LIFE OF DAVID S. TERRY. 

allusions of yours concerning me, made in the convention at 
Sacramento, reported in the Union of June 25. Upon the topic 
alluded to in your note of this date, my language, so far as my 
recollection serves me, was as follows: "During Judge Terry's 
incarceration by the Vigilance Committee I paid $200 a week to 
support a newspaper in his [your] defense. I have also stated 
heretofore that I considered him Qudge Terry] the only honest 
man on the Supreme Bench; but I take it all back." You are 
the best judge as to whether this language affords good ground 
of offense. I remain, etc., D. C. Broderick. 

Upon the authority of gentlemen who v^^ere then 
the devoted friends of Mr. Broderick, and who still 
honor his memory, it is here stated that in the draft- 
ing of the above second note from him to Judge Terry, 
the same prudent and wise counsel was presented and 
urged by those who wished to prevent a hostile meet- 
ing. But again their good counsel was overborne by 
the persistence of the others, who argued that " the 
fight had got to come some time, and it might as well 
come now;" and these malignant advisers again and 
conclusively prevailed. The note left Judge Terry 
no other alternative except craven withdrawal from a 
demand which he was justified in, a relinquishment of 
his claim for apology or redress, or the course which 
he did pursue, to this purpose: — 

San Francisco, September 9, 1859. 
Hon. D. C. Broderick — Sir: Some months ago you used 
language concerning me, offensive in its nature. I waited the 
lapse of a period of time fixed by yourself before I asked repara- 
tion therefor at your hands. You replied, asking specifications 
of the. language used which 1 regarded as offensive. In another 
letter I gave you the specification and reiterated my demand for 
a retraction. To this last letter you reply, acknowledging the 
use of the offensive language imputed to you, and not making 
the retraction required. This course on your part leaves me no 



TERRY AND BRODERICK. 1S9 

Other alternative but to demand the satisfaction usual among gen- 
tlemen, which I accordingly do. Mr. Benham will make the nec- 
essary arrangements. Your obedient servant, 

D. S. Terry. 

Senator Broderick had gone too far to recede with 
honor, or to save himself from the charge of cowardice, 
had he refused to comply with the inexorable conclu- 
sion; and even death to him was always preferable to 
the bare suspicion of a craven spirit. His pride was 
above his love of life in this respect. Accordingly, as 
the closing letter of the series, came this: — 

San Francisco, September 10, 1859. 
Hon. D. S. Terry — Sir: Your note of the above date has 
been received at one o'clock A. M., September 10. In response 
to the same, I will refer you to my friend, Hon. J. C McKibben, 
who will make the necessary arrangement demanded in your let- 
ter. I remain, etc., D. C. Broderick. 

There was nothing now left but to prepare for the 
meeting, and to proceed with it. Colonel Thomas 
Hays, formerly of New York City, and one of Brod- 
erick's earliest supporters in San Francisco, was in- 
vited to assist with Calhoun Benham on behalf of 
Judge Terry; and ex-Sheriff David Colton, of Siski- 
you, was similarly chosen on behalf of Mr. Broderick. 

The four met for the purpose, and after due deliber- 
ation, Mr. Broderick being the challenged party, and 
therefore entitled to name the style of weapons and 
order the terms of combat, the following was presented 
by his seconds: — 

"ist. Principals to be attended by two seconds and 
a surgeon each ; also by a person to load the weapons. 
This article not to exclude the drivers of the vehicles. 



190 LIFE OP DAVID S. TERRV, 

If Other parties obtrude, the time and place may be 
changed at the instance of either party. 

"2d. Place of meeting, on the farm adjoining the 
Lake House ranch. The road to the farmhouse 
leaves the old Lake House road, where you strike the 
first fence of the Lake House property, about a mile 
before you reach the Lake House. There you take 
a road to the left, which brings you to the farmhouse, 
on the upper end of the lake (Laguna Merced), occu- 
pied by William Higgins. This is the general neigh- 
borhood ; the precise spot to be determined when the 
parties meet. 

"3d. Weapons, dueling pistols. 

"4th. Distance, ten paces; parties facing each other; 
pistols to be held with the muzzles vertically down- 
wards. 

"5th. Word to be given as follows, to wit: the in- 
quiry shall first be made, 'Gentlemen, are you ready?' 
Upon each party replying 'Ready,' the word 'Fire' 
shall be given, to be followed by the words 'one, two,' 
neither party to raise his pistol before the word 'Fire,' 
nor to discharge it after the word 'two.' The inter- 
vals between the words 'Fire, one, two,' to be exem- 
plified by the party winning the word, as near as may 
be. 

"6th. The weapons to be loaded on the ground in 
the presence of a second of each party. 

"7th. Choice of position and the giving of the word 
to be determined by chance — throwing up a coin as 
usual. 

"8th. Choice of the two weapons to be determined 
by chance, as in article 7th. 



TfiRRY AND BRODERICK. 19I 

"9th. Choice of the respective weapons of parties 
to be determined on the ground, by throwing up a 
coin, as usual; that is to say, each party bringing their 
pistols, and the pair to be used to be determined by 
chance, as in article 7th. 

"Time, Monday, 12th September, 1859, at 5^ 
o'clock, A. M. " 

The seconds of Judge Terry protested against the 
place selected for the meeting, and also against the 
unprecedented brevity of the firing time, as proposed 
by the seconds of Mr. Broderick, on which corre- 
spondence ensued, in this form and with this result: — 

"On the part of Judge Terry, it is protested against 
the word being stopped short of the word 'three,' as 
unusual and unwarrantable: also against the place of 
meeting being either in San Francisco or San Mateo 
County. 

"Mr. Broderick's seconds answer the protest in re- 
gard to the parties being restrained by the word 'two,' 
that it is neither unusual nor unwarrantable, and has 
the feature of humanity; also, that no possible ad- 
vantage can accrue to their principal by fixing the 
place at a remote and isolated spot, where they will 
not be intruded upon. 

"Article number 5, among the articles setting forth 
the terms upon which the parties are to have their 
meeting, is objected to, because the word 'three,' to 
follow 'two,' is not to be called as the word after which 
neither party is to fire upon his adversary; and it is 
propounded to the seconds of Mr. Broderick, on be- 
half of Judge Terry, whether or not such article (num- 
bered 5) is insisted upon as a sine qua non to their 
meeting. A categorical answer in writing is requested. 



192 LIFE OF DAVID S. TERRY. 

"Article numbered 5, among the articles setting 
forth the terms upon which the parties are to have 
their meeting, being objected to, because the word 
'three,* to follow 'two,' is not to be called as the word 
after which neither party is to fire upon his adversary, 
and it being propounded to the seconds of Mr. Broder- 
ick, on behalf of Judge Terry, whether or not said arti- 
cle (numbered 5) is insisted upon 3.53. sine qua non to 
their meeting, and a categorical answer in writing being 
requested of Mr. Broderick, it is responded by his sec- 
onds that, having in the terms asked nothing but 
what their principal is entitled to, and the terms not 
subjecting their adversary to any disadvantage, the re- 
quest is deemed improper, it being always reserved to 
them, the friends of Judge Terry, to accept or decline 
the proposed terms." 

The arrangement to fire stopping at the word "two" 
was without precedent in modern dueling. The uni- 
form rule had been to give the word, "Fire — one — 
two — three," and to discharge the weapons at any 
time between the words "one" and "three;" and this 
had been the invariable custom in California, in all af- 
fairs of the kind, according to the code. The change 
was a surprise to Judge Terry's friends and to him- 
self. It was the opinijn of his seconds that he was 
not obligated to submit to the extraordinary require- 
ment; but he waived the disadvantage, as he felt that 
to insist upon the rule would subject him to the odium 
of having sought an apparent slight pretense to back 
out of an affair from which he expected the worst, 
through the superior skill of his antagonist. The 
seconds of Mr. Broderick were aware of his consum- 



TERRY AND BRODERICK. 193 

mate marksmanship in pistol practice, and he was ac- 
customed to fire with uncommon readiness, at a mo- 
ment's glance at the target. Hence they so arranged 
for the word, and mode of firing, and persisted in that 
arrangement. It was a material advantage, all other 
things being equal, especially in a case where the ad- 
versary was accustomed to ordinary deliberation in 
the discharge of his weapon. And so the terms 
stood as the seconds of Mr. Broderick had exacted. 
In preparing for the affair, Judge Terry had pro- 
cured, at Stockton, the dueling pistols owned by 
Jo Beard, ex-clerk of the Supreme Court, then in the 
possession of Dr. Dan Aylette. They had been pur- 
chased many years before, in Paris, by Beard's father, 
a distinguished citizen of New Orleans, and presented 
by him to his son, who brought them to California. 
They had been used several times in affairs of honor, 
and were so exactly alike in every respect that no 
difference had ever been discovered in their shooting 
qualities. They had hair triggers, evenly and equally 
adjusted. When Judge Terry received them from 
Dr. Aylette, he tried them with two shots. He made 
what are termed "line shots," but hit each time below 
the target. He tried them no more, but returned 
them to their case, and Dr. Aylette took them after- 
wards to Oakland. On Aylette's arrival there, the 
case of pistols was given in charge of Mr. John Frea- 
ner, formerly deputy sheriff under Jack Hays, and by 
him kept in safe custody until the moment the pistols 
were required, to be taken across to San Francisco 
for the duel. Judge Terry neither saw them, nor 
practiced with any other pistols, from the time he sur- 



194 LIFE OF DAVID S. TFRRY. 

rendered the case back to Dr. Aylette at Stockton, 
until the weapon selected for his use by his seconds 
was placed in his hands, on the morning of the duel, 
when Mr. Broderick was also handed the weapon he 
was to use. 

The time appointed for the duel and all the prelimi- 
naries were agreed upon during Saturday, September 
ID. The duel was fixed for Monday morning, the 
1 2th. Notwithstanding the arrangements had been 
made to bring off the meeting, a number of the frirnds 
of Mr. Broderick, together with some of Judge Terry's 
friends, and others, who stood in mutually friendly re- 
lations to each of the two, undertook still to effect a 
peaceable settlement of the difficulty. Among these 
gentlemen, E^dmund Randolph, A. P. Crittenden, and 
John A. Monroe bore leading part, John Nugent, 
the noted Herald editor, likewise exerted his influ- 
ence. David Mahoney endeavored to } revent the 
meeting. But these efforts proved unavailing. To 
one of them, who had pressed his way to the place 
where Mr. Broderick was kept concealed to prevent 
arrest, and insisted upon an interview with him, Col- 
onel A. J. Butler, who was doing duty at the door as 
sentinel and keeper, remarked, as he denied the ad- 
mission so earnestly implored and insisted upon by 
the friend : " It is no use. You are too late. The 
fight has got to come, and this is the best time for it. 
Broderick never had a better chance, and he isn't go- 
ing to get hurt. He can hit the size of a ten-cent 
piece at his distance every time. These 'chivs' have 
got to learn that there is one man they can't back 
down." It was in similar spirit that others, on the 



TfiRRY AND BRODERICK. 195 

same noble mission, were denied access to Mr. Brod- 
erick, and admonished to cease their endeavors. And 
it is hardly too much to say that, had these really 
true friends managed to get the ear of Mr. Broderick, 
the unfortunate meeting would not have taken place. 
It was on his own altar, mainly by his own high 
priests, that he was sacrificed. In fact, he felt him-' 
self that no sacrifice on his own part was likely; for he 
remarked to his intimate friend John White, before 
proceeding to the field on the first day, in response to 
White's remark that he hoped him safe deliverance, 
"Don't you fear, John; I can shoot twice to Terry's 
once; beat him shooting every time." It was this su- 
preme confidence in his own expertness with pistols 
which inspired him from first to last. 

Dr. Dan Aylette was engaged to attend Judge 
Terry upon the field, as surgeon, and he invited Dr. 
William Hammond to accompany him. Dr. Ham- 
mond had never, up to that time, seen either of the 
principals. They were alike entire strangers to him; 
and, as he had never engaged in political life or par- 
ticipated in party matters, he had no bias or feeling, 
one way or the other. He was expected simply and 
solely to officiate as surgeon in case his services should 
be required. Dr. Loehr, editor of the German anti- 
Lecompton paper in San Francisco, was engaged as 
surgeon for Mr. Broderick. 

The day and night before the meeting on Monday 
morning, Judge Terry was housed at the residence of 
Colonel Thomas Hays. Mr. Broderick was amply 
cared for at the house of a devoted friend near the 
place of meeting. At the appointed hour, the parties 



196 LIFE OF DAVID S. TERRY. 

were on the ground; but just as the seconds were 
about to proceed with the affair, Chief of PoHce Burke, 
fortified also with the legal papers from the authori- 
ties of San Mateo, in which county the field was situ- 
ated, just across the San Francisco line, advanced 
from a corner of the field and arrested the principals, 
serving each with a writ to answer, in court that day. 
The parties submitted to the authority of the law, and 
that day appeared before Judge Coon, who had been 
chosen to the place upon the People's ticket, nomi- 
nated by the Vigilance Committee element. Colonel 
E. D. Baker appeared on behalf of Mr. Broderick, 
and the prosecuting attorney insisted that the parties 
should give bonds to refrain from further attempt to 
violate the law or break the peace. Judge Broanan 
appeared upon the opposing side. Judge Coon de- 
cided that no breach of the peace had been committed, 
and discharged the defendants. Dr. Aylette, satisfied 
in his own mind that the affair was stopped for the 
present, returned that afternoon, by the Stockton boat, 
to his home. 

That night, however, as the parties were free to go 
on and conclude the matter, it was arranged that the 
meeting should come off the next morning, at the 
same place and hour. Dr. Hammond was then en- 
gaged to attend on the field, as surgeon for Judge 
Terry. At the appointed hour the parties again 
reached the ground. The spectators numbered about 
eighty, having made their way thither in all manner 
of vehicles, on horseback and afoot. In choosing for 
the customary points of advantage, agreeably to the 
articles, by the tossing up of a half-dollar, the seconds 



TERRY AND BRODERICK. 197 

of Judge Terry won for him the choice of weapons; 
and Mr. Broderick's seconds won the choice of ground 
and the giving of the word — a decided advantage, 
inasmuch as that had been the disputed point, the 
manner of giving the word as insisted upon by 
Mr. Broderick's seconds. By mutual agreement, 
"Natchez," the noted gunsmith of the city, was em- 
ployed as armo/er. The seconds of Mr. Broderick 
had brought the pair of pistols he preferred, just as 
Terry's seconds had with them the Jo Beard pistols 
of his choice — the pair they then selected for the duel. 
The two principals first took station on the field at 
random, each with his friends near about him. They 
showed equal nerve, but Judge Terry was apparently 
more composed. He closely eyed his antagonist. 
Mr. Broderick once directed his glance toward Terry, 
looked at him squarely, and then averted his eyes, as 
if not caring to continue it. A singular difference of 
conduct was noted in the surgeons. Dr. Hammond 
had come upon the field, addressed and shaken hands 
with Judge Terry, and then thrown himself upon the 
ground, with his overcoat underneath him. There 
was nothing visible about him to indicate his profes- 
sion, in the way of instruments. Dr. Loehr, on the 
contrary, had brought with him a large sack, contain- 
ing surgical instruments and a lot of bandaging stuff, 
and from the mouth of this sack protruded a long 
saw — the whole paraphernalia suggestive of desperate 
operations in surgery. He sought occasion to con- 
verse with Mr. Broderick, while the latter walked to 
and fro awaiting the call of his seconds, and all the 
time he carried, or partly dragged, this horrid-looking 



198 LIFE OF DAVID S. TERRY. 

sack, with its rattle of instruments, its ugly protruding 
saw, and its plethora of linen rags for bandages. It 
demonstrated the remarkable self-possession of Mr. 
Broderick, that he paced the ground with his surgeon 
during their conversation with such splendid equa- 
nimity of manner. It was a raw morning, and the two 
chief actors in the tragic scene kept on their overcoats 
while they could. It was noticeable that Mr. Brod- 
erick had drawn his soft felt hat down low over his 
eyes, and that occasionally he pulled the rim still 
lower, while Judge Terry adopted the opposite mode 
of wearing his hat, of similar kind, far off his fore- 
head, and back upon his head. Still, Mr. Broderick 
seemed as one confident of his own ability to bravely 
sustain himself in every respect, and determined upon 
no child's play. Conscious of his wonderful skill in 
the weapons his seconds had stipulated for the en- 
counter, he evidently felt certain of hitting his mark, 
for his opponent was even of larger frame than him- 
self. Of this skill, the Morning Call of that very 
morning had published this report, and it had been 
shown to his antagonist: — 

A DEAD SHOT. 

It is generally understood that Judge Terry is a first-rate shot; 
but it is doubtful whether he is as unerring with the pistol as 
Senator Broderick. This gentleman, recently, in practicing in 
a gallery, fired two hundred shots at the usual distance, and 
plumped the mark every time. As he is also a man of firmer 
nerve than his opponent, we may look this morning for unpleas- 
ant news from the field. 

This was manifestly the general opinion and expec- 
tation of Mr. Broderick's friends and admirers; for 



TERRY AND BRODKRICK. 1 99 

they had knowledge of his skill in shooting, and ihcy 
all knew his indomitable pluck. Judge Terry had 
himself been apprised of Broderick's skill, and he was 
duly conscious of his own disadvantage in that respect, 
especially as the rapid form of aiming and firing en- 
forced by Mr. Broderick's seconds added to his risk. 
But he seemed steeled for the terrible ordeal, and 
gave no sign of nervousness while the preliminaries 
were in progress. 

At length the seconds invited the principals to their 
allotted stations. As Mr. Broderick's seconds had 
won the choice of ground, they secured for him the 
due advantage. The sun was just rising above the 
neighboring low hills,^ Mr. Btoderick was placed 
with his back to the sun, Judge Terry facing it. The 
pistols were carefully examined by the seconds, then 
loaded — Mr. Broderick's by the armorer, and judge 
Terry's by his friend Sam. H. Brook^ — and handed 
to the principals. Before taking their positions, Terry 
had watched Broderick carefully, and he remarked to 
Colonel Brooks that he, Broderick, was in no condi- 
tion to fight a duel and he did not propose to more than 
"lame him." Brooks saw that Terry was right. Brod- 
erick appeared like a man in a trance. The fact was, he 
did not want to fight Terry, but he did want to fight 
Gwin, and he expected to. But Brooks, in handing the 
pistol to Terry, said: "This is no child's play, Mr. 
Terry; you have come here to put yourself up to be 
shot at. If you mean anything, it is to kill, and you 
owe it to your wife and family and to your friends to 
protect yourself You see those men up there (point- 
ing to some eighty or a hundred who had gathered in 



200 LIFE OF DAVID S. TERRY. 

the rear of Broderick). Every man there is a friend 
to Broderick, and they are here to see you killed and 
to rejoice over it. You say you only intend to lame 
him. I want you to promise me that you will not 
trifle with your opportunity." 

Terry cast his eyes over the field, saw the throng 
that had congregated, and said to Brooks: "I will hit 
him, but I do not want to kill him." With this re- 
mark, Colonel Brooks retired, feeling confident that 
Terry would end the controversy by inflicting a wound 
that would put Broderick in such a condition that 
there would be no occasion to repeat the shot. 

Judge Terry took his pistol, held it behind him for 
a moment, and then rested it on his left arm in front. 
Mr. Broderick critically examined his pistol, and took 
pains deliberately to adjust it to his grip. . Apparently 
satisfied, at length he attentively measured with keen 
look the ground between his adversary and himself, 
both ways, to and from him. The two had cast off 
their overcoats, and were quite similarly dressed, in 
full black suits, with frock coats buttoned across the 
breast, and without shirt collars. Mr. Benham exam- 
ined Mr. Broderick's person to see that he wore noth- 
ing to stop or glance a bullet; Colonel McKibben 
similarly examined Judge Terry. Mr. Broderick had 
just before handed his watch and the money in his 
pockets to McKibben, and Judge Terry had likewise 
passed the contents of his pockets to Benham. The 
word, as it was to be given, was exemplified by Mr. 
Colton, and repeated by Mr. Benham. The seconds 
then took their appropriate places. Judge Terry 
stood erect and firm, but in easy attitude, with his 



tERRV AND ERODE RICK. 20i 

body accurately sideways to his antagonist, his pistol 
arm hanging naturally, close to his person, with appar- 
ent readiness for full play to every muscle, his pistol 
in exact vertical position, and his legs precisely in line. 
His look was directed full toward Mr. Broderick, and 
his facial expression was of imperturbable composure, 
alive to the serious matter in hand^ 

Mr. Broderick's whole frame revealed the tremen- 
dous power of his determination, and his face, pallid 
from the wasted condition of his system, incident to 
the exhaustion of the fatiguing and terrific campaign 
he had so recently concluded, showing the prodigious 
force of his will in the mastery of his shattered nerves, 
now held as in wonderful strain of rigidity. There was 
not the tremor of a fiber from crown to sole. But 
his rigor of body was so severe that he hid not easy 
command of motion, or essential play of action of 
trunk or limb. / He stood as a marvelous complication 
of mortal clay and nerve so delicately and yet so 
stoutly fashioned that, while no deadly peril could af- 
fect it, no external force could shock it, the slightest 
internal disturbance would disconcert it all. It was 
observed by the seconds of Judge Terry that Mr. 
Broderick held his pistol, not vertically, as the articles 
required, but pointed outward in obtuse angle, and to 
this defect Mr. Benham called the attention of Col- 
onel McKibben, who immediately went to Mr. Brod- 
erick's side to rectify the wrong. His rigor of frame 
was so intense that, in the eftort to adjust his pistol to 
the required position, he was obliged to use his left 
hand to bring his right arm into proper form; and in 
the effort he also so swerved his whole body that his 

14 , 



202 LIFE OF DAVID S. TERRY. 

right leg was pressed out of place, downward and for- 
ward, out of line with the left leg, and his chest was 
thrown out and .quartering toward his antagonist, so 
as to present a larger surface for the chance of a shot 
aimed at him. He held his pistol in vise-like grip; 
and his wrist, instead of being in condition for ease of 
motion, was as an iron bolt, to move only with and as 
rigidly as the arm. He seemed the impersonation of 
that order of courage which faces death without terror, 
which prefers doom to the reproach of fear. . Xike 
Wellington's intrepid soldier, he was conscious of his 
peril, but braved it. 

At nearly 7 o'clock that fated Tuesday morning, 
every other procedure of the awful scene having been 
adequately performed according to the articles, Mr. 
David Colton, the second of Mr. Broderick, upon 
whom the painful duty had been imposed, put the 
dread question, preliminary to the "word," "Gentle- 
men, are you ready .'*" Instantly the response came 
from Judge Terry, ** Ready," in firm, natural tone of 
voice, and without play of feature or movement of 
muscle. Mr. Broderick did not respond at once, but 
again occupied a few moments in. adjusting his pistol. 
This done, evidently to his satisfaction, he spoke the 
word "ready," accompanied by a gesture and a nod^ 
as of assent to Mr. Colton. Then came the "word," 
"Fire — one — two." The pause between the words 
was as that between the striking of the hours of "the 
cathedral clock," as a critical observer described it. 
Almost at the "one," Mr. Broderick fired. The ball 
from his pistol entered the ground just nine feet from 
where he stood, in a true line with his antagonist. 



TERRY AND BRODERICK. 2O3 

Judge Terry fired before "two" had been uttered. 
A slight show of dust upon the right lapel of Mr. 
Broderick's buttoned coat gave token where the ball 
had struck. (In a moment Mr. Broderick's right arm 
was raised nearly in line from his shoulder and ex- 
tended at full length; the left arm simultaneously 
moved in similar manner. In his right hand he still 
gripped his pistol. A visible shuddering of the body 
was instantly perceptible, then a violent contraction 
of the right arm, a relaxation of the fingers of the 
right hand, from which the pistol dropped to the 
ground. A heavy convulsion shook his quivering 
form, he turned toward the left, his head dropped, 
his body sunk, his left knee first gave away, then the 
right, and in a moment he was half prostrate on the 
sod, his left arm supporting him from falling prone. 
( His seconds rushed to his aid. His surgeon was with 
him in a flash, but it was soon manifest that he had 
been somewhat confused by the scene. Judge Terry 
stood with folded arms in his appointed place, await- 
ing the requirements of the situation. His seconds 
went to him at once, and he remarked to Mr. Benham 
that his ball had "hit too far out " to be mortal; he 
believed it to be no more than a flesh wound, over the 
chest, and not dangerous, for no blood had flowed 
from Mr. Broderick's mouth, as is the case in in- 
stances where the lungs are penetrated. Satisfied, 
however, that another shot would not be required by 
Mr. Broderick's seconds, Terry then left the ground.- 
From his place on the sward. Dr. Hammond had 
sharply observed all that had occurred. He did not 
think that Mr. Broderick was dangerously wounded, 



204 LIFE OF DAVID S. TERRY. 

felt confident that the hurt was not mortal, but he 
saw the perturbation of Dr. Loehr, and at once sug- 
gested to Mr. Benham the propriety of the proffer of 
his own services to Mr, Broderick. At that instant, 
as Mr. Benham was advancing to make the proffer, 
Colonel McKibben came forward to request Dr. Ham- 
mond's assistance, and stated that it was also the 
desire of Dr. Loehr. Dr. Hammond immediately 
went to Mr. Broderick's side, and assisted in the ex- 
amination. Mr. Broderick conversed with him about 
the nature of the wound, in a calm manner, and with- 
out apparent dread of the consequences. As Dr. 
Loehr had omitted to bring restoratives or bandages 
suitable for the purpose. Dr. Hammond furnished 
Mr. Broderick with his flask of brandy, and put about 
him the chest bandage necessary in a wound of the 
kind. And then, after courteous exchanges on each 
side, between Mr. Broderick and himself, the seconds 
and the surgeon. Dr. Hammond withdrew, more as- 
sured than ever that the wound was not likely to prove 
mortal, as less than a tablespoonful of blood had been 
expectorated, and there was no indication of internal 
hemorrhage — good or hopeful tokens that the lungs 
had received no serious injury. 

Mr. Broderick was soon conveyed to the house of 
his friend, Leonidas Haskell, at Black Point. Judge 
Terry rode into San Francisco, took a boat, held 
ready for him by Michael Hays, brother of Colonel 
Thomas Hays, and was taken directly to Oakland, 
where he was met by John Freaner, who informed 
him that the report in town was that Broderick had 
been killed. Terrv assured him it was not the fact; 



TERRY AND BRODERICK. 205 

that his ball had struck him "too far out," as he had 
first expressed it on the field. He also said to Mr. 
Freaner that, had a moment's further deliberation 
been allowed him in the firing, he should have shot 
so as to inflict no injury whatever; but the informa- 
tion he had received of Broderick's amazing skill in 
shooting, supported by the paragraph statement in the 
Call that morning (copied in this chapter), and the 
apparent determination of Mr. Broderick himself, on 
the field, impelled him, in consideration for his own 
life, to shoot so as to prevent the risk of a second 
shot from his antagonist. From Oakland he pro- 
ceeded homeward, and subsequently surrendered him- 
self to the authorities, to answer for the deed, thence 
to pass acquitted of criminal intention in what he had 
done, but to suffer for it through many years, in the 
ways hardest for a man of high spirit to suffer and 
endure. 



CHAPTER XXVI. 

Broderick's Death — The Inquest — The Obsequies* 
— Public Sentiment. 

Senator Broderick received his wound Tuesday 
morning, September 13, at about seven o'clock. It 
was not considered mortal at the time. Subsequent 
examination by the surgeons developed its dangerous 
nature. He had complained of a pain in his left lung 
to Dr. Hammond, on the tragic field; but that gentle- 
man and Dr. Loehr alike believed it not serious. All 
the indications were to the contrary. Closer exami- 
nation, under circumstances better adapted to the oc- 
casion, demonstrated the error of this belief. Still, 
during Wednesday and Thursday there were hopes 
of his recovery. These were dissipated Thursday 
night; and at 9:20 o'clock the morning of Friday, the 
1 6th of the same month, he died. Fated and fatal 
Friday to him. It was on a Friday, also, something 
more tha^, two years before, he had been chosen a 
senator of the United States, the pinnacle of his life's 
ambition, the consummation of his many years of 
struggle and study and toil, such as no other mortal 
ever endured or ever triumphed over. Now he lay 
dead, in his fortieth year, in the full vigor of life's 
prime, in the height of his own marked career, and 
upon the very verge of the yet higher and yet grander 
(206) 



TERRY AND BRODERICK. 207 

fi<fld he was so likely to be called, in making his name 
still more famous, and building for himself a monu- 
ment more enduring than stone, prouder than his own 
prideful and aspiring spirit had in earlier years ever 
dared to soar in its ambitious flights, limitless in its 
world-wide scope. 

On the afternoon of the following day the coroner 
held inquest upon the body. Doctors Holman and 
Bertody were appointed to the duty of the autopsy. 
It is enough to state that the ball had pierced the 
lungs, and no mortal power could have saved the 
patient from death. It had been reported that there 
was a perceptible difference in the hair triggers of the 
pistols, and that the one left for Mr. Broderick to use 
was much more delicate to the touch than the pistol 
used by Judge Terry; and this was made a subject of 
special inquiry. Lagoirde — "Natchez" — the armorer, 
stated it to be the fact, in his examination. Colonel Mc- 
Kibben, who had so critically examined the pistols on 
the field, and even tried the one used by Mr. Broder- 
ick, testified positively that there was no appreciable 
difference in the two; that the weapons were, in 
every respect, similar. It was the disposition of "Nat- 
chez" to find fault with any other pistols than his own. 
And after the inquest, there was published, in connec- 
tion with it, this, which appeared in the San Francisco 
News, Mr. Broderick's campaign organ: — 

"We are requested by Mr. McKibben and General 
Colton (the seconds of Mr. Broderick) to state that 
Mr. Lagoarde, the gunsmith, did not tell them when 
on the ground, as he testified at the inquest, that there 
was any difference between the pistols used by Mr. 



208 LIFE OF DAVID S. TERRY. 

Broderick and Judge Terry; and, that so far as their 
own careful examination of the weapons was concerned, 
there was no perceptible difference in the tightness of 
the triggers." 

The verdict of the coroner's jury was in accordance 
with the evidence and the facts. 

The obsequies were solemnized on. Sunday, Septem- 
ber 1 8, in a manner never before witnessed on any sim- 
ilar occasion. Before his death, Mr. Broderick had 
received the sacraments of the dying in the Roman 
Catholic Church, although he had not, during his life, 
been a communicant of that church, and the funeral 
was arranged from the Union Hotel, so long Mr. 
Broderick's headquarters. A platform had been 
erected in the plaza opposite, and there Colonel E. D. 
Baker delivered an eloquent oration, befitting the sad 
occasion. Among the pallbearers were Judge Mc- 
Corkle, Judge Ogden Hoffman, General Vallejo, ex- 
Governor McDougal, Judge Currey, Jo. C. Palmer, 
D. J. Oliver, Ben S. Lippincott, John A. Monroe, 
Judge Shaw, Alex, Campbell, Frank Soule, E. L. 
Beard, John O'Meara, Edmund Randolph, Wilson 
Flint, S. M. Dwinelle, John White, and his former 
fellow-firemen of New York, George Green, F. D. 
Kohler and Wm. McKibben. John Middleton was 
grand marshal of the procession. The Rev. Fathers 
Hugh Gallagher and Maraschi were the officiating 
clergymen at the ceremonies. A hundred and fifty, 
comprising many of the most distinguished citizens, 
served as chief mourners, conspicuous among whom 
were A. P. Crittenden, John Conness, Colonel Jo. C. 
McKibben, General Colton, Colonel A. J. Butler, C. 



TERRY AND BRODERICK. 2O9 

Stagg, Elliot J. Moore, John McGlynn, Lucien Her- 
man, L. Shearer, P. Crowley, Judge Crane, G. W. 
Colby, Marcus Boruck, Wm. M. Lent, Wm. F. Wil- 
liamson, Thos, Maguire, Harry H. Byrne and Charles 
Cook. Under the marshalship of David Scannell, the 
whole fire department marched. The Society of Cali- 
fornia Pioneers attended in strong force. Other soci- 
eties, citizens on foot, and more in a long line of car- 
riages and every kind of vehicle, paticipated. The 
remains were entombed in Lone Mountain Cemetery. 
The day after the funeral the Nezvs closed an editorial 
on the subject with this remark : — 

"It is said that Napoleon should have died at 
Waterloo. Mr, Broderick died not on an inappropriate 
field. 'The blood of the martyrs is the seed of the 
church;' and we mistake greatly if the sacrifice of Mr. 
Broderick'slife will not be fruitful of revolutionary re- 
sults in the popular mind." 

The sentiment and prediction were not wasted on 
barren soil. The mourned dead was utilized to sub- 
serve the purposes of the living, who had professed 
most to honor and to admire him in the life. By 
thousands his death was sincerely and passionately 
mourned. The whole community lamented it. The 
State and local authorities, the courts, the various 
societies and organizations, expressed their grief in 
resolutions of sorrow, and in tributes to his memory 
proclaimed their admiration for his character. The 
Republicans, in public meeting, and the party he had so 
lately led with unmatched vigor, alike deplored his 
death; but, in alluding to the manner of it, his own or- 
gan, the News, editorially made this remarkable state- 
ment: — 



2IO LIFE OF DAVID S. TERRY. 

"The day after the election he [Broderick] waited 
in hourly expectation of receiving a series of chal- 
lenges to mortal combat from his leading political op- 
ponents, and the first which reached him was from 
Judge Terry. This he did not regret, since, as he 
was told, D. S. Terry enjoyed the reputation of being 
the most expert shot in the State, was the representa- 
tive of the most desperate 'Chivalry,' and was, per- 
haps, his most extreme political opponent in the 
State." 

After the funeral came a hot cry for vengeance, and 
vehement appeals and demands upon the authorities, 
with efforts to rouse popular indignation. Chief Jus- 
tice Terry had resigned his high station before he en- 
gaged in the duel; and now there were clamors for his 
blocd in atonement for Broderick's death. The Call, 
which had, the morning of the duel, composedly inti- 
mated that Terry would come off worsted, the next 
day proclaimed, in Haming headline, that there was 
"Another Victim to the Bloody Code!" The Times, 
edited by Charles A. Washburn, who had received a 
flesh wound in his duel with Frank Washington, be- 
came furious for the "extremity of the law" to be ex- 
ecuted upon Terry, The News, with John White as 
editor, frantically labored to arouse the worst passions 
of the multitude; and other papers in the cities and 
throughout ihe interior counties were as desperately 
bent to provoke trouble, if not bloodshed. On his 
departure from San Francisco, accompanied by Con- 
gressman Scott, then re-elected, Dr. Gwin had flouted 
in his face a large canvas frame, on which was painted- 
a portrait of Mr. Broderick, and this: "It is the will 



TERRY AND BRODERICK. 211 

of the people that the murderers of Broderick do not 
return again to California;" and below were also these 
words, attributed to Mr. Broderick: "They have 
killed me because I was opposed to the extension of 
slavery, and a corrupt administration. ' And at the 
head of the columns of the anti-Lecompton organs 
was printed these reported solemn injunctions of 
Broderick to his friends: " If I die, protect my honor." 
"I die for a principle." 

Against this overwhelming flood of passion and 
fury, the administration papers opposed their best ef- 
forts, with comparatively small avail. Anger and 
vindictiveness ruled, and reason was feeble to with- 
stand the onset. The National, edited by Frank 
Washington and George Pen. Johnson, and the Stand- 
ard, controlled by Judge Charles T. Botts, were the 
leading organs of the administration, and all that it 
lay within them to do was done, but the tide or the 
torrent was plainly setting or forming the other way. 
The victory in the late campaign had been theirs by 
great odds; they had triumphed over Broderick's 
forces and the Republicans combined, after the most 
exciting and most acrimonious campaign ever waged 
in California. And yet, already, in a short week or 
so, with Broderick dead in his grave, there were deep- 
down indications that the cause for which he had so 
desperately battled, in which he had been so mortify- 
ingly defeated, would in the very next year win a vic- 
tory unparalleled in American politics. While he 
lived, his own cause, often in the minority, had rarely 
ever accomplished more than a partial triumph. He 
alone had succeeded as he wished; and it was by his 



212 LIFE OF DAVID S. TERRY. 

own irrepressible energy and indomitable presever- 
ance that he had succeeded. He could not lift his 
party to his own height, nor lead it whither he could 
force his own way. But now, no longer numbered 
among the living, resting forever with the unnumbered 
dead, his blood became indeed the seed of his worldly 
church; there was in it, conjoined and merged with 
that of others in a few months to flow, the vitalizing 
seed, and the quick, resistless power to divide and de- 
moralize the party of his earlier days, to suddenly rear 
up another which should radically overturn and scat- 
ter it in confusion aiid rout, and then to excite dis- 
astrous internecine war. 

Thus the living, active Broderick failed and fell at 
last, only as, his friends felt, to take from death its 
sting, from the grave its victory, and in the spirit, 
which he yielded not as he fell, to stalk, as the man 
himself would have eagerly given all but life itself 
could he have so stalked for bare one hour. 

It was in the manner we have described in these 
pages that Broderick lived; and the manner of his 
death is told. He was the last of his family line; he 
had been from his early manhood the sole survivor of 
his family and kindred, and now there was left only 
his name and the fame he had acquired to perpetuate. 
He had been the architect of his own fortunes, the 
sole genius of his own wondrous fabric of the lifetime 
he had made so dazzling and yet so calamitous. He 
had risen by his own exertions; he had schooled and 
trained and educated himself to be superior to every 
emergency, and the peer of the most powerful in the 
land, and it was by his own prodigious force of char- 



TERRY AND BRODERICK. 2l3 

acter that he had lifted himself out of the lowly sphere 
and obscurity to which he had been bo n and bred, 
and pushed and climbed his way to the exalted sta- 
tion from which his untimely death had so unexpect- 
edly plucked him. He had encountered and over- 
borne the mightiest in his adopted State; the Great 
Conqueror had proved his only conqueror. Undis- 
mayed, persistent, resolute, he had stubbornly ad- 
hered to the pursuit of his life's ambition until he had 
attained it, and not until he had then humbled the 
most formidable and most rancorous of his opponents, 
by "pulling out his claws and putting his brand upon 
him," were his pride and his vengeance alike satisfied. 
Nor even with this great triumph of his life, so his 
most intimate friends had reason to believe, was his 
towering ambition satisfied, for it was insatiable while 
there remained a loftier height to climb, a grander des- 
tiny beyond. It was inappropriate, they thought, and 
still think, to contrast him him with Napoleon, and 
his fate with Waterloo. More appropriate, they 
urged, would have been the comparison with Wolfe, 
who fell at the moment of his greatest victory upon 
the heights his valorous foe had counted inaccessible. 
Yet Broderick did not so fall, however much his ad- 
mirers may have believed, or do still believe, that, had 
he survived, his most glorious victory was yet to 
come, to place him upon the very pinnacle of his 
country's loftiest height, in position which he would 
have made one of almost supreme control. He had 
lived his destiny. 



CHAPTER XXVII. 

Judge Terry Surrenders to the Authorities — 
Gives Bonds — His Trial and Acquittal by a 
Marin County Jury. 

After Judge Terry had arrived in Stockton, he 
found the sentiment of the people so one-sided and 
against him that he concluded to surrender himselt 
to the proper officers and demand a trial. He was 
not willing to be called the murderer that seemed to 
pervade the public mind, knowing that he had only- 
resented ah assault more damaging to a man of his 
mental and moral standard of manhood than a blow 
in the face, or any other infliction of force on his phys- 
ical body. The sharp criticism and apparent prophecy 
of the San Francisco News, which was Broderick's 
organ, that "the sacrifice of Broderick's life would 
be fruitful of revolutionary results in the popular 
mind," had a semblance of truth, but the results which 
followed were brought about by events of a more 
general character. The nation was in political con- 
vulsions, and the tide of events toward the dreadful 
solution of the slavery question, in a fraternal and 
sectional conflict, was flowing with irresistible fury, 
finding a response on the Pacific Coast, to which the 
death of Broderick, although in sympathy with the 
masses, added but a feeble spark. Of it, however. 
(214) 



HIS TRIAL AND ACQUITTAL. 215 

his friends and sympathizers made him the hero and 
the martyr, and Broderick dead — killed by the hand 
of a man of strong Southern proslavery proclivities 
— was a greater power than Broderick living with all 
his mental resources and physical activities. Wcrds 
were put in his mouth which he never uttered, of a 
character to feed the flame of prejudice, and every 
sentiment calculated to awaken a spirit of revenge 
and nerve the people to action was employed — all 
this in face of the fact that he had taken a step be- 
yond prudence, and was too obdurate and confident 
of his own prowess to retrace it, when he could have 
done so, as the invitation was extended both by Judge 
Terry and his friends, without detracting one iota from 
his honor and pride, and without reflecting upon his 
personal courage. 

After having surrendered himself. Judge Terry ap- 
peared before Judge M. C. Blake, of San Francisco, 
and gave the following bond: — 



State of California, . 
County of San Francisco. * 



CO. I 



An order having been made on the twenty-fourth day of Sep- 
tember, 1859, by Hon. M. C. Blake, county judge of the city 
and C(-)unty of San Francisco, that David S. Terry be held to 
answer on a charge of having, on the thirteenth day of Sep- 
tember, A. D. 1859, in pursuance of an agreement previously 
made with David C. Broderick at the city and county of San 
Francisco, fought a duel with the said David C. Broderick with 
deadly weapons, to wit: with pistols loaded with gunpowder and 
leaden bullets, at the county of San Mateo, in which duel the 
said David S. Terry, at the county last aforesaid and on the day 
last aforesaid, feloniously and unlawfully did shoot off and dis- 
charge at and against the body of the said David C. Broderick 
a certain pistol loaded with gunpowder and leaden bullet, which 

15 



2l6 LIFE OF DAVID S. TERRY. 

said bullet so discharged from the pistol aforesaid by force of the 
gunpowder aforesaid did then and there strike, penetrate, and 
mortally wound the said David C. Broderick, of which said mor- 
tal wound, so inflicted as aforesaid, the said David C. Broderick 
did afterward, to wit: on the sixteenth day of September, A. d. 
1859, die, upon which charge he, the said David S. Terry, has 
been duly admitted to bail in the sum of ten thousand ($10,000) 
dollars. 

We, David S. Terry, principal; B. Walker Bours, G. W. 
Trahern, of the county of San Joaquin; and Myers F. Truett, 
of the city and county of San Francisco, as sureties, hereby un- 
dertake that the said David S. Terry shall appear and answer 
the charge above mentioned in whatever court it may be prose- 
cuted, and shall at all times hold himself amenable to the orders 
and processes of the court, and, if convicted, shall appear for 
judgment and render himself in execution thereof; or, if he fail 
to perform either of these conditions, that he will pay to the 
people of the State of Cahfornia the sum of $10,000. 

D. S. Terry, 
B. Walker Bours, 
G. W. Trahern, 
M. F. Truett. 

Signed and acknowledged before me this twenty-fourth day of 
September, 1859. M. C Blake, yi^^^f. 

Men of prominence, w^ho stood aloof from politics, 
and who were allied to no man's political fortunes, 
who could stand and judge coolly and equitably as 
between the two, knowing the circumstances which 
led to the untimely death of Broderick, were not favor- 
able to the conviction of Judge Terry as a reckless 
violator of the Constitiition and the law. So far as 
the equities of the case were concerned, Broderick 
had received no more than he expected or could 
rightly expect, should the case go against him. It 
was simply a game of chance, in which he had staked 
his life on the presumption that he was master of the 



HIS TRIAL AND ACQUITTAL. 21 7 

situation, and he lost. The stake was not so great 
on his side, as his reputation for uprightness was not 
so free from successful attack, and this had much to 
do with the coolness of the men when confronted on 
the field of honor. 

Immediately following the duel, the resignation of 
Judge Terry as chief justice of the Supreme Court 
was filed as of date September 12, 1859, but the rec- 
ords in the office of the Secretary of State show that 
his resignation had not been presented to the proper 
authority until September 14, one day after the duel. 
This record is one of the best evidences of the fact 
that Terry was not hunting for a fight with Broderick, 
and that he hoped for a peaceable solution of the 
trouble. 

When the case was called in San Francisco, a change 
of venue was taken to Marin County, and, after three 
weeks, during which time Judge Terry was present, 
it was tried before Judge James Hardy, who was after- 
wards impeached for disloyalty. Judge McKinstry, 
who occupied the bench of the Seventh Judicial Dis- 
trict at the time, was absent in Europe, There were 
no witnesses on either side, and, after the case was 
submitted, the jury returned a verdict of "not guilty." 
An indictment had also been presented against Terry 
by the grand jury of San Mateo County, and Judge 
Terry responded promptly. After the jury had been 
impaneled, Judge Norton, who presided, after exam- 
ining the papers presented from the Marin County 
court, showing that Terry had been acquitted on the 
same charge, dismissed the case. These proceedings, 
although fully exonerating him in a legal aspect, were 



2l8 LIFE OF DAVID S. TERRY. \ 

-i 

not accepted by the people. The political atmosphere 
was too heavily charged with the virus of slavery, and 1 
the JRepublican sentiment, which took deep root in j 
the tomb of Broderick, grew stronger. The inexor- 'j 
able march of the antislavery, free-soil sentiment was '; 
on its way to a logical conclusion, and it reflected j 
obloquy upon Judge Terry. There was no measure, I 
however small, of either sound judgment or reason, : 
in the temper of the people. How could a true and I 
correct history of such an event have been written ; 
and accepted when men were so absorbed in the polit- 
ical situation in the United States.'* In the face of 
the facts such stories were told as is found in the fol- 
lowing extract which appeared in a Denver news- 
paper at the time of Terry's death. It is only in 
keeping with the sentiments which were sent abroad 
at the time of the duel, and were, as the truth will 
show, divested of all semblance of truth and self- 
condemned in the very recklessness of the language 
used to express the falsehoods. The writer says: — 

"The story of the duel as told at the time by men 
who claim to be fully cognizant of all the details, was 
as follows, and the writer gives the salient items from 
memory, as he remembers them, when given to him 
thirty years ago while connected with the public press 
of New York City: — 

"Judge Terry, who was regarded as a 'dead shot,* 
had assumed to take offense at some all', ged public 
remark of Senator Broderick in regard to the political 
attitudes of the two parties in California, and sent a 
man to ascertain from Broderick if the alleged reports 
were true. His go-between met Senator Broderick 



His TRIAL AND ACQUITTAL. 219 

one morning at the breakfast table, and asked if the 
language attributed to him as having been used against 
Judge Terry was true. Broderick replied: 'What- 
ever I said I have said as a senator and a represent- 
ative ^of the people, speaking in behalf of my State 
and my party. I speak freely and aboveboard, in 
the interests of my party and my country. If I have 
said anything in my public speeches that reflects upon 
you in any way, wherein I am wrong, I am willing to 
apologize.' 

"Word was carried to Terry that Broderick meant 
what he said, whereupon a challenge was sent at once, 
and arrangement effected that the duel should take 
place at 6 o'clock in the morning, Broderick allowing 
his antagonist to choose the weapons, which were 
pistols, and the meeting-place was in the suburbs of 
the city of San Francisco. 

"During the time the arrangements were being per- 
fected friends got wind of the affair, and, when morn- 
ing came, officers of the law were found on the spot, 
and the duel was prevented. 

"Another place was agreed upon for the next morn- 
ing, in an adjoining county, when both parties ap- 
peared upon the scene, accompanied by their friends, 
Terry cool and collected, Broderick agitated and se- 
rious. 

" Both were placed in position, back to back, twenty 
paces apart, and each was to walk off ten paces, and 
at the word, 'one, two, three — fire,' was to wheel and 
fire. Terry, between the words 'one' and 'fire,' took 
deliberate aim at his opponent and fired, while Brod- 
erick discharged his pistol prematurely into the ground. 



220 LIFE OF DAVID S. TERRV. 

Terry remarked, in a cool, deliberate tone, *I think I 
struck him too low. I am afraid it will not prove 
fatal.' 

" Broderick was removed to the residence of a friend, 
and every attention paid him, but the bullet had done 
its fatal work, and in twenty-four hours after the fear- 
less senator was a corpse, a victim to political hate and 
intolerant persecution. 

"The whole country was thrown into consternation 
when the facts became known, but all attempts to 
bring the murderer to justice failed, and the breaking 
out of the great Rebellion a year and a half afterwards 
assisted in burying in oblivion all but the memory of 
one of the tragic events of that period." 



CHAPTER XXVIII. 

Public Sentiment against Him — He Goes to Vir- 
ginia City on a Mining Expedition — Returns 
in 1862 AND Meets with Success in Practice. 

In his retirement for a short time Judge Terry was 
ostracized in business. Even those who were his 
friends feared to engage his services, as juries, and 
even judges were more or less swayed by public opin- 
ion. He had been making and construing law for the 
past four years, and his reputation in that matter had 
not suffered. But a spirit such as Judge Terry pos- 
sessed was not apt to brood over such conditions long. 
There were other fields of activity, and in the fall 
of i860, in company with Captain John Russell, Lance 
Nightingale, Wm. Burns, and two other men, he 
started for Virginia City, Nevada, for the purpose of 
operating in the mines. On their way they camped 
in a small valley where a man named Berry kept a 
hotel. They were all mounted on good horses and 
armed with rifles. Berry had no feed for their horses 
but straw, and he was a rather disagreeable man. In 
the morning Terry complained of the accommodations 
for their horses, and made some remark about the 
scanty feed they had had, and Berry, who was a pow- 
erful-looking man, became angry and threatened to 
whip him. Captain Russell, fearing trouble, informed 
Berry privately who Terry was, and he immediately 

(221) 



2 22 LIFE OF DAVID S. TERRV. 

disappeared and they never saw him again. The 
incident was so utterly amusing to Terry that he 
connected the straw with the man and named it 
Strawberry Valley, and the name still remains. 

Arriving at Virginia City, Terry was advised by an 
attorney there to take up a claim. He did so. The 
ground belonged to Hirst & Meredith, a fact which 
he did not know. It was a portion of the mining 
ground that belonged to Hirst & Meredith, and when 
they discovered him there, and knowing who he was, 
they employed a man named Tom Andrews, a fight-^ 
ing Kentuckian, to run Terry off the ground. Tom 
told him that the best thing he could do was to get 
away; that if he supposed it was jumpable ground he- 
was mistaken, and he proposed to defend the prop- 
erty. Terry, who was not inclined to appropriate the 
property of others, immediately left, remarking that if 
he was wrong he did not want anything to do with it. 

After this he took up a large body of land on the 
divide between Virginia City and Gold Hill, and 
walled it in with a high stone wall. Here he sunk a shaft 
some thirty feet for water, in connection with a man 
named L, B. Brown. His claim was near the Bullion 
mine. He failed to get the water, but held the ground 
until the spring of 1862, when people began to jump 
his claim for building lots, and he abandoned it. The 
evidences still remain, and are called "Terry's Wall." 
During his stay in Virginia City he had a difticulty 
with two Irishmen who took up a portion of his claim 
on C Street for a woman known as "the sage hen." 
He ordered them off and they undertook to whip him. 
He turned upon them and knocked them both down, 



PUBLIC OPINION. 223 

and they got up and left. In the fall of 1862, in com- 
pany with a man named George W. Elsworth, he left 
Virginia City for Stockton and never returned. 

The excitement incident to the duel with Broderick 
had not abated, but seemed to grow more intense 
throughout the State. Public feeling was not directed 
against him personally, but against the political faction 
to which he belonged. The most influential news- 
papers were fanning public sentiment to a white heat 
of passion in unison with the spirit that seemed to 
pervade the whole country. The presidential cam- 
paign was just closing, and the divided Democracy had 
but little hope of success. The Broderick elements 
were also divided in California — a portion for Doug- 
las and a portion for Lincoln, while the Chivalry 
were solid for Breckinridge. Terry took no active 
part in the campaign. He was on his good behavior, 
hoping that after the conflict the calm judgment of the 
people would set him right and place him in history 
where he belonged. He had assisted in making a 
share of history, and, conscious of the rectitude of his 
actions, he awaited hopefully for the deliberate ver- 
dict of the people, unbiased by partisan prejudices. 
But that time never came. A portion of what he had 
done became fuel that heated the fiery furnace of civil 
war, and the high court was dissolved in the clash of 
arms, following the inauguration of Lincoln. The 
people had no time, and if they had the time they had 
no inclination, to study the unities of such an isolated 
dramatic incident when the nation was in peril. 

He returned to the practice of law in Stockton, and 
he realized that his four years' service on the Supreme 



224 LIFE OF DAVID S. TERRY. 

Bench stood him well in hand. He met with a success 
he had not anticipated. His old friends, and business 
men, who were averse to him in politics, engaged his 
services, knowing his eminent abilities, and not forget- 
ting that it was the same man whose honor and integ- 
rity had called forth so many sentiments of admiration. 
While they may have despised his political opinions, 
they trusted his judgment and his honesty. Political 
ostracism did not deprive him of personal integrity, 
business ability and domestic felicity. His noble wife 
stood by him in all his misfortunes. She cared for 
and assisted in educating the boys in her charge and 
performed her part with heroic fortitude. He was 
quiet and undemonstrative, and maintained his friendly 
relations with those about him, suppressing his feelings 
when the first shot was fired at Sumter and for more 
than a year after, when, in February, 1863, the slender 
thread of loyalty to the government gave way in his 
passionate love for his associations in the South, and 
he left to join the Confederate army. 



CHAPTER XXIX. 

Terry at Jackson and Vicksburg in the Confed- 
erate Army — He Goes to Richmond — 'Com- 
missioned AS A Colonel — Wounded at the 
Battle of Chickamauga — Raises a Texas Reg- 
iment — Promoted to Brigadier General. 

Judge Terry was a very peculiar individual. He 
left no footprints of his maneuvers unless moving in 
the public thoroughfares of life. His private transac- 
tions are a sealed book. He kept no journal that 
would furnish a clue to his actions. He was of all 
men the most reticent. When he determined to 
unite with the South in the war, he quietly disposed 
of as much of his property as he could, and placed his 
business affairs in the care of B. F. Langford, and in 
the latter part of January, 1863, in company with W. 
T. Robinson, Duncan Beaumont, E. B. Grayson, 
Judge Bowland, Tod Robinson, a Mr. Lovelace and 
Major Hyatt went to San Francisco, where they took 
a steamer and left for the South. They stopped at 
Mazatlan for almost two months procuring good sad- 
dle horses and pack animals. 

On their way through Mexico to Texas, they 
passed through Durango, Saltillo, Monterey and 
Comargo. While resting at Monterey an incident 
occurred which was pleasing, not only to Terry, but 

r. , (225 



2 26 LIFE OF DAVID S. TERRY. 

to all the parly. When he first came to California he 
brought with him a number of his negro servants from 
Texas. When the constitution was adopted and the 
State admitted, these slaves were free, and they drifted 
away. But a slave seldom forgets his master when 
kindness has been the rule toward him. Two of these 
former slaves, having learned that their former master 
had gone South to join the Confederacy, concluded to 
follow. They proceeded to San Francisco, and upon 
inquiry learned the route the party had taken, and 
boarded a vessel for Mazatlan, Here they procured 
horses and pack mules and followed the party up, over- 
taking them at Monterey. As they came upon the 
party, one of them said, "Ah, Massa Judge, you think 
you run away and join th^ Confed'acy and leave us 
behind, but you was mistaken." These two colored 
men remained with Terry until the close of the war. 

After leaving Monterey they went to Comorgo and 
thence to Kings Ranch, Columbus and Richmond on 
the Brazos. Here the party stopped and rested two 
weeks at the plantation of Colonel Frank Terry, the 
judge's oldest brother, who was killed at the head of 
his regiment at Green River, for the purpose of re- 
cruiting their jaded animals, previous to proceeding to 
Tennessee, where they proposed joining Bragg's army. 
It was the wish of Judge Terry to enlist in the Eighth 
Texas Cavalry regiment, originally recruited and com- 
manded by his brother Frank. After recruiting, they 
proceeded on horseback to Shreveport, La., thence 
to Natchez, Miss., and from there to Jackson, where 
General Jo. Johnson was commanding a small army, 
attempting to raise the siege of Vicksburg. While 



TERRY AS A CONFEDERATE. 227 

here Judge Terry and others of the party were in- 
troduced to General Johnson by Captain W. W. 
Porter, who was on the general's staff as assistant 
adjutant general. Terry was invited by General John- 
son, with others of the party, to accompany him on 
his sraff, where they remained for a short time, going 
with him to the Big Black in the rear of Vicksburg, 
and retiring with him to Jackson after the surrender 
of that stronghold. They remained with him during 
the seven days' siege of Jackson, and after the evacu- 
ation of that city and its occupation by Sherman and 
his forces on the 22nd of July, there being no more 
active operations. Judge Terry proceeded to Rich- 
mond to offer his services to the Confederate Secretary 
of War. 

The writer has been informed by a person who was 
in the confidence of the Confederate Secretary of War 
that when asked by the head of the department what 
he wanted, he demanded a commission as major gen- 
eral and the command of a departirent. He was 
told that this was out of the question; that such posi- 
tions were reserved for those who had borne the heat 
of the conflict and earned such honors by distinguished 
services. However this may be, he was granted au- 
thority to raise a regiment in Texas, and after visiting 
President Davis, whom he had known while in the 
Mexican War, he started for the West. 

On his way to Texas he fell in with the Confederate 
army, under Bragg, just a few days before the battle 
of Chickamauga. Here Terry was in his first and last 
battle. His brother's old regiment, the Eighth Texas 
Cavalry, then commanded by Colonel Harrison, of 



2 28 LIFE OF DAVID S. TERRY. 

Texas, was in General Wharton's division, and he 
volunteered his services on the general's staff. In 
this engagement he received a flesh wound in the 
right arm, near the shoulder. 

After the battle of Chickamauga he proceeded to 
Texas, in company with Major S. B. Brooks and 
Duncan Beaumont, and they formed a regiment of 
conscripts, and he was chosen colonel, and Brooks 
lieutenant colonel. Soon after he was commissioned 
brigadier general. 

The immediate department was under command of 
General Wharton, a brave and gallant officer, and the 
assignment of Terry to the command of the brigade 
incensed the military spirit of the senior colonel, 
named Bayler, who made some remarks while angry 
derogatory to the fighting qualities of General Whar- 
ton. Some unpleasant words passed between them, 
and, when the general visited the headquarters of 
Bayler. to settle the dispute, in a friendly way, and 
while the two were alone, General Wharton was shot 
dead. Colonel Bayler was arrested and tried, and, 
having presented a clear case of self-defense before 
a civil tribunal, he was acquitted. 

General David S. Terry remained in command of 
the brigade in Texas until the close of the war, and 
his command was included in the surrender of troops 
under General E. Kirby Smith. 

Mrs. Terry, who was one of the most remarkable 
women this country has produced, with her family, 
joined her husband in Texas. "Her fortitude in the 
face of inconstant fortune," says a writer, "often 
evoked the applause of her husband's foes. Circum- 



TERRY AS A CONFEDERATE. 229 

Stances making it impracticable for her to accompany 
him when he drew his sword for * the lost cause,' she 
followed on a steamer to San Bias, and thence pushed 
on overland through Mexico to Texas. Twice on 
the way she was robbed by bandits, but each time 
the robbers were apprehended by Mexican officers, 
and her property restored to her. On the journey 
her infant b^be died, and she carried it for two days 
on horseback before she found a spot to give it Chris- 
tian burial. She joined her husband in Texas, and, 
with the exception of this brief separation, was his 
constant companion through all the vicissitudes of his 
eventful life until her death, which occurred on the 
twenty-fourth day of December, 1884. 

The collapse of the Confederacy left him for the 
time without a country and a home. His proud spirit 
revolted at the idea of again returning to the State of 
his adoption, where he had won honor and fame, and 
where, alas! he had been made the victim of a polit- 
ical prejudice for defending his honor when bitterly 
and publicly assaulted and defamed. It was his all 
in life, and a principle which he had guarded and de- 
fended above that of his life. The absorbing senti- 
ment which followed had not allowed the public to 
judge calmly at the exciting moment, and the tre- 
mendous results which followed, coupled with the 
part he had chosen to take in the bloody conflict, only 
made the situation more humiliating'and less easy of 
solution. By accepting service in the Confederate 
army he had violated the very principle he had so 
highly valued, and, under the penalties imposed by 
the government, having held a high constitutional 



230 LIFE OF DAVID S. TERRY. i 

'4 

office, he was disfranchised, with thousands of his ] 
comrades in arms, who had drawn their swords to ; 
destroy the government. ' 
The seeds sown in youthful soil take root and be- j 
come a part of the man. If false to the onward march \ 
and evolutions of time, it is called blind prejudice. '\ 
His was a stern and rocky nature, which yielded not ■ 
to the changes of customs and the moulding processes \ 
of a higher and better civilization. He had read of \ 
the transitions which had come about through the ■ 
intrigues of men of ambition in changing republics 
into dynasties, and he knew that the people had been \ 
made the willing servants of tyrants who had brought \ 
about these unhappy results. He imagined that j 
the assault upon the established institutions of the j 
country would end the liberties oP the people and ] 
establish a despotism, and all his sympathies were i 
with the associations of his youth. Now he was cast \ 
upon a sea of doubt, yet the spirit of freedom was j 
alive and burning more brightly, and the test was 1 
about to be made. He was not ready to give up the " 
land of his birth. Although humiliated in spirit, he < 
still entertained a hope that wise counsels would pre- 
vail, and that the extinction of slavery would not end j 
in anarchy. In the following chapter will be found a \ 
short "history of the ordeal through which he passed, ^ 
giving a slight insight into his temper and patriotism ^ 
under the most trying circumstances and the love of | 
liberty which prevailed. j 



CHAPTER XXX. 

His Sojourn in Mexico after the Close of thk 
War — Warned by French Troops not to 
Cross the Border — Incidents at Tepic — Ex- 
perience WITH A Wealthy Mexican — Failure 
in a Cotton-Raising Enterprise — Relations 
with Dr. Gwin — Refusal to Accept a High 
Command under the Emperor Maximilian. 

The flag he had fought for had gone down in de- 
feat, and, being unwilling to return to California while 
fresh memories of the bloody conflict were agitating 
his proud spirit, he took his family and his nephew 
David, and in company with Colonel Brooks and Ma- 
jor Beaumont, with a number of his soldiers, he went 
to Parras, Mexico, where they were joined by Cap- 
tain W. W. Porter, who had served on the staff of 
General Joseph E. Johnson, and who was afterwards 
appointed a supreme judge of Arizona by President 
Cleveland. After spending a short time at Parras 
prospecting and consulting what best to do, they went 
to Buena Vista, but were ordered by the French 
troops then occupying Mexico, not to enter the front- 
ier. Then they went to Tepic, where they remained 
for several days. 

Among the Texans who were with him was one 
Jack Cavanagh, a reckless, dare-devil sort of a fellow 
i6 (231) 



232 LIFE OF DAVID S. TERRY. ? 

'i 

who had a strong penchant for gambling. After los- -, 
ing everything he possessed, except an old silver ; 
watch, Jack undertook to sell it by force to some .; 
Mexican soldiers who were stationed there under ^ 
Marshal Bazaine, who had his headquarters at Tepic • 
at the time. When in one of his ranting moods, try- , 
ing to sell his watch, Cavanagh picked up an old mus- 
ket which he did not know was loaded, cocked it, •' 
pointed it at a Mexican, and pulled the trigger. Of > 
course the Mexican was killed. Jack was arrested by | 
order of Bazaine, and imprisoned in the guardhouse, j 
As soon as Judge Terry heard of it he went to head- j 
quarters and demanded his release, as the shooting ; 
was an accident. The military discipline under Mar- ' 
shal Bazaine was extremely rigid, and he refused to ! 
release him. Terry became exceedingly angry, and ! 
things became lurid around about the headquarters of I 
the marshal of the empire for a few minutes, and .] 
whether he understood the peculiar activities of Judge j 
Terry or not, it was observed that Cavanagh was re- | 
leased in a short time. What really did occur be- * 
tween the two was never known, for Terry was ever ' 
reticent, and never talked about his prowess, his vie- 1 
tories, or his defeats on any occasion. ' 
From this place they received passports to San i 
Luis Potosi, and thence to the Pacific Ocean, and here I 
Judge Porter and Major Brooks left him and returned i 
to Calitornia. Leaving his family and the Texans^. ] 
who had followed him at Mazatlan, Judge Terry and 
Major Beaumont went to Guadalajara and made ar- ■ 
rangements with a prominent Mexican to engage \ 
largely in wool growing. He leased an extensive i 



HIS SOJOURN IN MEXICO. 233 

hacienda, and returned to Mazatlan. How to stock 
his ranch was troubling him, as he did not care to go 
to California in person, when his noble wife came to 
his rescue and tendered her services. She came to 
California and purchased a band of sheep, and some 
fine horses, and during her absence he waited at Ma- 
zatlan. The stock were shipped to San Bias, whence 
they were driven to Guadalajara by his Texan com- 
rades. When he arrived at Guadalajara the Mexican 
had changed his mind for some reason, and would 
not fulfill the contract. While he could get no satis- 
fa'ction, it was supposed that the military authorities 
had interfered, as they were very suspicious of stran. 
gers on their territory at that time. He disposed of 
his sheep as best he could, retaining his horses, and 
went to the valley of the Santiago, and, in company 
with Beaumont, concluded to engage in raising cotton, 
which industry h'^. was familiar with. During the two 
years from the spring of 1864 until the autumn of 
1866, the French, under Maximilian, had possession 
of Mexico. At that time Hon. Wm. M. Gwin, ex- 
United States senator, was in Paris, intriguing with 
Emperor Napoleon for the privilege of colonizing So- 
nora with refugees from the States then in Rebellion. 
Although having espoused the Confederate cause, 
Gwin, who had assisted Mason and Slidell in Paris 
in the effort to secure a recognition by France of 
the Confederate government, had lost all confidence 
of a successful issue, and turned his attention to this 
new scheme of colonization. In this he saw an asylum 
for those who had lost their all in the conflict at arms, 
and also some compensation by way of prosperity in 



234 LIFE OF DAVID S. TERRY. 

his own behalf. He pressed the emperor by the 
strongest appeals, but Napoleon was slow in yielding 
to his ambitious desires, as the stability of the throne 
of Maximilian was not guaranteed. Judge Terry was 
in communication with Gwin, and his movements in 
Mexico, as an observer prepared to occupy the coun- 
try and be the pioneer under the new order of things, 
was emphasized by the presence of the ex-Confederate 
soldiers who had accompanied him into Mexico. 
There were others in this enterprise, but not familiar 
with the secret movements going on as was Terry. 
Gwin was the master spirit, and through his intrigues, 
which became the public property of the Mexican 
Minister by accidentally falling into the hands of the 
American Consul at Vera Cruz, he was dubbed "Duke 
of Sonora." It was with more than ordinary solici- 
tude that Judge Terry watched the movements of the 
contesting forces, for Benito Juarez was a shrewd, 
brave, and untiring defender of the republic. His 
pure Indian blood was running hot and his determina- 
tion to drive the Fi/ench and Maximilian from Mex- 
ico was strong. 

It was possibly true that the Fren:h had knowl- 
edge of the fact that Terry was operafing with Gwin, 
and having become acquainted with his history as 
an able, daring, and fearless man, and a general in 
the Confederate army, he was tendered a high com- 
mand in the French army by Maximilian. Here 
was an opportunity for him to retrieve his lost fortune 
and become a hero. At the same time he would have 
been relieved of the necessity of enduring the pres- 
ence of his old friends and associates who had with- 



HIS SOJOURN IN MEXICO. 235 

drawn their sympathy from him when he deserted the 
Union and took up arms against the Constitution he 
had so often sworn to protect and defend, and in de- 
fense of which he had imperiled his life in opposing 
the Vigilance Committee. Terry was too shrewd not 
to see the drift of events. He knew the empire 
would fall, but he had some confidence in the enter- 
prise of Gwin, which could be easily adjusted by the 
republic of Mexico, as it did not disturb iis autonomy. 
He frankly refused the intended compliment, with the 
remark that he could not accept a position of honor 
or trust under a monarchy in Mexico, as the United 
States was too closely allied to the territory, and too 
jealous of the crowns of the Old World to sit quietly by 
and permit any nation in Europe to establish an em- 
pire in North America on the ruins of a republic. 

In connection with the understanJing existing be- 
tween Gwin and Terry, the following letter will be 
sufficiently self-explanatory: — 

City ofJMexico, July 2, 1865. 
My Dear Colonel: After coming to Mexico armed with 
authority from Emperor Napoleon, directing, or recommending, 
Marshal Bazaine to detail a sufficient force of French troops un- 
der his command to protect colonists in Sonora for a short time, 
I find the Emperor Maximilian opposed to lending any military 
assistance to my humane scheme for the development of the re- 
sources of the territory and the suppression of Indian hostilities. 
He fears the Anglo-American spirit, believing that it is my inten- 
tion, with that of others, to play a ruse in order to usurp the em- 
pire and dethrone him. He thinks the people of the United 
States are all Yankees, and are only grasping for power and the 
subjugation of «all the territory of North America. In fact, he 
positively refuses to give us any military aid and my mission in 
that respect is practically at an end. It would be rash to under- 
take any such scheme as I have had in contemplation without the 



236 LIFE OF DAVID S. TERRY. 

aid and assistance of the French army of occupation, for the 
small force under your orders would not be sufficient to check 
the ravages of the Apaches, and it would be construed as an act 
of hostility on the part of the United States and Mexico, or a 
filibustering scheme on the part of irresponsible persons, unlaw- 
ful, and subject to condeninatian for you to strengthen your 
forces sufficiently to protect us in our colonization. As an aid to 
the French troops until such time as sufficient numbers could be 
colonized for self-protection, it would be well enough, for outside 
of a military force there can be no serious objections to the 
scheme. Knowing the strength and determination of those who 
oppose the empire, and who leads and counsels with them on this 
occasion, it looks too much like opposing friends to assume the 
responsibility. Such a responsibility must be assumed by the 
emperor to protect us. 

I know you would dare to do anything you thought was right, 
but Juarez is not the man to antagonize when the imbecility and 
instability of the empire is so apparent. I leave to-morrow for 
the States, having abandoned hopes for the success of my mis- 
sion. Your excellent judgment, my dear colonel, will be your 
best guide as to your future movements. 

With great respect, your obedient servant, 

W. M. GwiN. 

His cotton-raising enterprise was not a success. 
After two seasons of labor, and the failure of Dr. 
Gwin to organize his Sonora colonization scheme, he 
concluded to return to California and put forth his 
best energies to eradicate from his former history the 
wrongs placed upon his name as a result of his duel 
with Broderick, which became a plague spot through 
the inexorable force of political environment. His 
high spirit and sensitive nature were overcome by the 
necessities which confronted him, and after spending 
a few months in Pioche, Nevada, he arrived in Stock- 
ton in the fall of 1869. 



CHAPTER XXXI. 

Returns to California and Settles in Stockton — 
Resumes His Practice with Success — Impor- 
tant Cases in Which He Was Employed — 
Confidence in His Abilities — His Masterly 
Defense of the " Chronicle " against the 
" Federal Brigade." 

On his return to Stockton, after an absence of six 
years, Judge Terry found his old home had been con- 
sumed by fire, and his first work was to place his 
family in a comfortable position. He rebuilt his 
house, opened a law office, and sat quietly down to 
await the result. It was not long until he was sat- 
isfied and pleased with the assurance that his old 
friends had not forgotten him, and that he had not 
suffered by his allegiance to the South. It was not 
a man's opinions they wanted; it was his abilities and 
his worth. In a very short time he was in full pos- 
session of his former practice, and, although some 
changes had taken place during his brief absence, he 
very readily made himself acquainted with the new 
order of things. He was now living in a country 
absolutely free, and, with that heroic philosophy wh ch 
avoids a conflict with fate, he accepted the situation 
as the "inexorable logic of events," seldom referring 
to his former life or the incidents that had special 

(237) 



238 LIFE OF DAVID S. TERRY. 

reference to the changed condition of social and polit- 
ical affairs. 

He was still a Democrat, but took no part in poli- 
tics, being one of the many who fell under the ban of 
political ostracism by the reconstruction acts of Con- 
gress. He had lost heavily with the "lost cause," 
and, to retrieve his fortune, he must be diligent in 
business. He had lost but little in physical vitality, 
his robust frame having proved equal to the arduous 
conflicts he had endured. His strong intellect was 
unimpaired, and his unyielding fortitude never wa- 
vered. He put forth all the energies he possessed, 
and for the time was free from the exercise of that 
violent passion which nature had given him as a birth- 
right, to lead him to a tragic death. 

In his practice Judge Terry was engaged in a 
number of important cases, and his services were 
sought by litigants in all parts of the State, but more 
particularly in the San Joaquin Valley counties. In 
1874 ^ young man named Granice, of Merced, in 
defending the reputation of his mother (Rowena Gran- 
ice Steele) from newspaper attacks by the editor of 
the Merced Express (Madden), shot and killed him 
on the street. Terry defended him, and, after having 
been tried twice, and convicted and sentenced to 
State prison for thirty years, Terry secured his re- 
lease on a technicality. He seldom resorted to such 
means, but in this case he only took advantage of an 
error in the proceedings. The Supreme Court, upon 
application, had granted a new trial. After being 
arraigned on the same indictment, and the evidence 
all in, the district attorney, in conformity with the 



RETURNS TO CALIFORNIA. 239 

provisions of the code, moved that the jury be dis- 
charged, and the prisoner remanded to await an in- 
dictment for a higher crime, the testimony going to 
show that the charge should be murder. This was 
done, and Terry permitted it with silent satisfaction. 
An indictment for murder was found by the grand 
jury, and he was convicted and sentenced. Terry 
took an appeal to the Supreme Court, on the grounds 
that the discharge of the jury when first arraigned 
and tried was equivalent to an acquittal, and the Su- 
preme Court sustained him. 

In 1868 his brother, Aurelius J. Terry, who had 
been in California in 1850, died in Texas, leaving a 
son who was only nine years old, and Judge Terry 
took charge of and directed his education. He studied 
law, and is now an able and brilliant attorney of the 
Fresno bar. He was a candidate for Congress in 
1888, and made a brilliant campaign. The odds were 
too great, and he was defeated, but retained his well- 
merited character for ability and intelligence before 
the people. 

As is true of any political party, the Republicans 
became corrupt through a long and continuous lease 
of power in the Federal government. Aaron A. Sar- 
gent was United States senator, and Horace P. Page 
was congressman from the Third District. In the 
dispensation of patronage they had done some ques- 
tionable work in manipulating the service at Mare 
Island Navy Yard, and their conduct reflected dis- 
grace upon the party and the nation to such an extent 
that the San Francisco Chronicle, the leading Re- 
publican paper of the State, indulged in severe per- 



240 LIFE OF DAVID S. TERRY. 

sonal criticism, denouncing -their peculiar methods. 
Smarting under the lash, they brought suit against 
the publisher of this newspaper on a charge of crim- 
inal libel. In selecting a man of commanding ability 
as counsel in the case, one who was honest and fear- 
less in opposition to political frauds, and whose char- 
acter was above reproach as a lawyer, he trusted his 
case in the hands of Hon, David S. Terry, It was 
a memorable suit, and creating a national notoriety. 
All the energies of the government officials were em- 
ployed to prosecute the case and clear the skirts of 
the officials charged with the grave offense. The 
case was tried twice, and, although a verdict of ac- 
quittal seemed impossible, there was no conviction, 
and the disclosures made by the efforts of Judge 
Terry left the odium on the skirts of the senator and 
representative. His peculiar skill and abilities placed 
Judge Terry on a level with the ablest attorneys in 
the State. 

During the ten years following his return to Stock- 
ton, in 1869, he labored diligently and earnestly to 
fortify his previous reputation for honesty and integ- 
rity by his acts and general demeanor. He had lost 
none of these eminent qualities, although he may have 
added something to the prejudices that still existed 
on account of former acts, which had made him noto- 
rious by engaging in the Civil War on what was con- 
sidered the wrong side, which proved to be not a 
revolution, but a treasonable revolt that failed of its 
purpose. He controlled his evil genius with remark- 
able fortitude on all occasions, although it was that 
part of his nature for which he was scarcely respon- 



RETURNS TO CALIFORNIA. 24 1 

sible, and which led him into all his troubles. Prob- 
ably this was principally owing to the fact that no 
supreme occasion presented itself to arouse his pas- 
sions. His son Samuel became his partner in busi- 
ness, and with him came a still larger practice, as he 
was the very opposite of his father in his friendships, 
and was greatly admired by all his associates. 



CHAPTER XXXII. t 

\ 

Elected a Member of the Constitutional Conven- i 

TiON OF 1878-79 — Opposition to His Being ■ 

Sworn in by the Workingmen — He Sees His \ 

Opportunity — His Speech on Freights and 1 

Fares. j 

There were no eventful incidents worthy of note 

compared with those which have been recorded dur- : 

ing these years of professional labor, which were de- ■ 

voted energetically to retrieving a wasted fortune un- i 

til the year 1878. The Legislature of that year had \ 

passed a law providing for a convention to revise the • 

constitution, and delegates were to be chosen. He , 
was solicited to become a candidate by the people of 

San Joaquin County, independent' of party. In look- | 

ing over the field they could find no man whose emi- \ 

nent abilities and whose qualifications fitted him for \ 

the trust equal to Judge Terry's. They knew they \ 

could trust him, and as the bitterness of the opposi- ; 

tion to him on account of past transactions had ceased > 

to be a byword and reproach, he allowed his name \ 

to be used, with the distinct understanding that he ; 

would not be required to go before the public in sup- i 

port of his candidacy. Happily, this was the plan j 

adopted by the non-partisan elements. There were a ! 

number of politicians in the State, members of both 1 
( 242 ) 



THE CONSTITUTIONAL CONVENTION. 243 

of the political parties, who did not believe in. non- 
partisanship in anything, and they nominated separate 
tickets and made a strictly partisan fight for control of 
the convention. In conjunction with these partisans 
was the labor element, then agitating the centers of 
population throughout the State. The effect of these 
movements was to elect the whole non-partisan ticket 
at large, but the workingmen secured a large number 
of the members of the convention, San Francisco be- 
ing almost solidly represented by that element. Judge 
Terry was elected by a large majority. It was a 
pleasure to him, and the people were also pleased to 
know that they had in him as a representative one 
who would reflect credit upon them by his great abili- 
ties, and as he had never betrayed a public trust, 
they knew his labors would be directed in the right 
channel. 

Denis Kearney, a political mountebank who had 
arrayed the laboring classes and the disturbing, disso- 
lute elements of San Francisco and the State against 
capitalists and men of enterprise, in his endeavors to 
awaken a spirit of anarchy, had control of the city 
government of the metropolis. Enough of his repre- 
sentatives had secured seats in the convention to 
cause alarm, and it required considerable ability and 
good judgment to circumvent their evil intentions to 
frame a constitution which would have the effect to 
drive capital out of the State and paralyze the promi- 
nent industries. Understanding the motives and 
nature of this class. Judge Terry espoused their cause 
at the beginning, and they made him their leader. 
By this piece of consummate tact in securing their con- 



244 LIFE OF DAVID S. TERRY. ^ 

iidence, he controlled them, and, in so doing, avoided i 
many of the monstrous and unwise provisions which \ 
otherwise would have been engrafted into the con- 
stitution, either causing its defeat before the people, j 
or impairing its us-fulness if adopted. As it was, i 
there were several provisions which they insisted \ 
upon, and having the power, they succeeded in adopt- ) 

One of the prominent leaders of the Kearney fac- ■ 
tion in the convention, was C. J. Beerstecher of San \ 
Francisco. When the name of David S. Terry was ; 
called at the organization of the convention, Beer- ■ 
stecher arose ai^d objected to his being sworn in. He ] 
was followed by C. C. O'Donnell and James O'Sulli- ' 
van, all sand-lotters. Beerstecher has since been \ 
hushed by the monopoly on a small ranch in Napa j 
County; O'Sullivan has been relegated to his normal ! 
quiescent condition, and O'Donnell has been a candi- \ 
date for any office in sight, at every returning elec- ; 
tion, from governor down to coroner, in the interests 1 
of the anarchical elements ever since. Governor ; 
Irwin, who presided over the convention during its ■ 
temporary organization, promptly squelched this ef- i 
fort by saying: — \ 

"The gentleman will please take his seat; the gen- ; 
tlemea are out of order. The law makes it my duty i 
to swear in the persons elected to the convention. ^ 
Then any objection to the eligibility of members can i 
be raised. The power to determine who are mem- ; 
bers rests in the convention, and not in the Governor, : 
who presides temporarily." | 

Judge Terry did not ignore this feeling of preju- •: 



THE CONSTITUTIONAL CONVENTION. :245 

dice by allowing it to piss without an afterthought. 
Havnng been on his good behavior for a long term of 
years, he had learned to be somewhat politic, and con. 
eluded to use that ingredient in the exercise of his of- 
ficial duties as a member of the convention. He had 
the ability, and he had the good judgment to see 
beyond the surface, and to reach and control this ad- 
verse spirit was his determination. In view of the con- 
dition of things he knew that patience must be exer- 
cised, and generosity exhibited, which would be felt 
and appreciated. Hence he was reticent for a time, 
although he had been placed upon two of the most 
important committees in that body — the judiciary and 
legislative — to the latter of which he was added 
after the convention had been at work for several 
weeks. 

It is eminently proper in this connection to present 
his speech in this convention which called to his con- 
fidence this disturbing element, unfortified with ability, 
yet powerful in numerical strength, and so intensely 
irrational in their ideas that he might control them to 
a certain extent, and avoid the consummation of fatal 
errors by any rash mistakes that would provoke a 
righteous hostility to the instrument they were en- 
gaged in framing. Upon the question of corporations 
he saw his opportunity, for it involved, to a great ex- 
tent, the employment of Chinese and the exclusion of 
the white race. The question in committee of the 
whole was the powers to be granted to the railroad 
commissioners, a body which the convention had de- 
termined to create. The immediate question under 
discussion was the subject of unjust discriminations 



246 LIFE OF DAVID S. TERRY. 

in freights, a protest having been submitted by the 
directors of the Southern Pacific Railroad Company. 
In it was incorporated a clause that if the railroad 
company, by any attempt to shut out competition, 
should reduce their rates for fares and freights, they 
should not have the power or privilege of raising 
them again. On this question Mr. Terry said: — 

"Well, if the railroad company, by putting doWn 
their rates, choose to commit hari-kari, for myself I 
have no objections to it. I think that the amendment 
of the gentleman from Los Angeles is eminently 
proper, and ought to be adopted; that they them- 
selves are the best judges of what they can afford to 
carry freight for, and if for any purpose they announce 
their willingness to carry for a certain rate, they should 
be held to their contract, and not be allowed to raise it. 

" Some allusions have been made to the magnificent 
donations of money, property, and credit which have 
been made by the Federal government, by the State 
of California, and by the several counties in the State. 
The gentleman from Marin asserted that these were 
free gifts, without any conditions; that after the prop- 
erty passed it became the property of the railroad, 
and that they were under no obligations to the donor. 
True, sir, the recipients of a gift are under no legal 
obligations to the donor, but the obligation of com- 
mon gratitude is held to be an obligation by most 
natural persons. There was an implied understanding, 
at the time when these donations were made to this 
corporation, that the property which was given to 
them, and the money which they were endowed with, 
was not to be used as a weapon against the donors; 



THE CONSTITUTIONAL CONVENTION. 247 

not to be used for the oppression of the people by 
whom the money was given. It is true that it gave 
them an opportunity to increase the resources of the 
State, and it is supposed that they would use it so as 
directorship acquired wealth. I have not heard of 
any others reaping any considerable profit from it. 
It is said that, by forming a contract and finance com- 
pany, and lakipg a contra t from themselves to build 
the road, they put into their own pockets all of the 
money that came from the various sources into the 
corporation. However that may be, I know of some 
stockholders who never got rich from the profits of 
this corporation. The county of Placer became a 
stockholder to the amount of about $300,000 — cer- 
tainly twice as much money as any of the present 
owners of that enterprise ever put into it of their own; 
and, according to the wealth of these men, estimated 
at from $8,000,000 to $15,000,000, the county of Placer 
ought to have had $15,000,000 or $20,000,000. I 
would like to have my friend from Placer, Judge Hale, 
tell me how much that county made out of it. The 
county of Sacramento was also a subscriber to the 
stock to the extent of some $300,000. Certainly that 
was more than any one of these individuals put in; 
and, while they have their $15,-000,000 or $20,000,- 
000, and are living in opulence, how many dollars has 
the county of Sacramento realized ? The county of 
Santa Clara subscribed $250,000, and the county of 
San Joaquin $250,000, and, as the owner of twenty- 
five hundred shares, according to the profits made by 
the directors, who certainly did not put in half that 
amount to the man, ought to have had $20,000,000, 
17 



248 LIFE OF DAVID S. TERRY. 

and not one dime uf it has ever gone Into the treasury 
of that county. Now, is there not some reason why 
people should look with some displeasure upon the 
accumulation of these large sums in the hands of a 
few men who are charged with using it for their own 
interests, for a corruption fund in the Legislature, and, 
perhaps, in some instances. in the courts of justice? 

"It is our duty here to adopt some plan by which 
the people of California are to be protected against 
this tyrannical corporation, because it has just come 
to be this question, either you have got to govern 
that corporation, or the corporation will govern you. 
That is the question which the convention has got to 
determine first, and the people afterwards. I exam- 
ined, with a good deal of care, the twentieth section 
of this report of the Committee on Corporations, and 
I could not bring myself, as I thought, to support it; 
but I must confess that my determination to vote 
against that section was very much shaken by what 
might have been a warning or threat, one or the other, 
held out by the gentleman from Sacramento, Mr. Ed- 
gerton, in his eloquent address upon this subject. He 
intimated that the passage of that section would drive 
this corporation into politics, and that they would 
probably be able to control the election of these com- 
missioners, and, owning them, they can discharge five 
or six thousand Chinamen, and employ voters in their 
stead. Now, gentlemen, If I was certain that even 
that much good would result from It; if I was certain 
that five thousand Chinamen would be discharged, 
and that five thousand citizens would be employed, 
and thus be able to earn an honest liviiio^ for their 



THE CONSTITUTIONAL CONVENTION. 249 

families, I would be almost tempted to vote for it, wi.h 
all its faults. If it secured the discharge of aliens and 
employment of citizens who have families to support 
which would add to the future prosperity of the State, 
it would go very far to counteract the evils which 
might follow from this power in the hands of three 
men. I have too much regard for the honesty and 
intelligence of the people of this State to believe that 
the elections can be controlled by such measures. 
The people have seen too much of that in the past. 
In spite of all their influence, a square vote of the 
people of this State will sustain any measure which is 
intended to curb the grasping avarice of that corpora- 
tion, and prevent further oppression upon the people 
of this State. 

"It is said that they themselves are thi best judges 
of what they can charge; that no information can be 
obtained which will enable the Legislature or con- 
vention to fix the rate at which their road ought to 
be run. And it is said in the argument against the 
amendment of the gentleman from Los Angeles, that 
some man might get a stage line, have a parcel of old 
stages on the line, and blackmail the railroad company, 
and might say, 'If you don't come down with so much 
money I will run opposition to you,' and they would 
be compelled, unless they could put down their freights 
and fares, to submit to blackmail. Well, gentlemen, 
I have always heard that one of the principal argu- 
ments in favor of fostering these railroad corporations 
was that it would secure a cheaper mode of transpor- 
tation than stage coaches and mule teams. If that is 
not true — if the railroad company cannot afford to 



250 LIFE OF DAVID S. TERRY. 

carry both freight and passengers at rates cheaper 
than stages and mule teams — then the sooner the 
corporations are destroyed the better for the future 
of Cahfornia. If the freights are the same and the 
fares are the same when this work is being done by 
mule teams and stages, they are the best, for the 
profits of transportation are shared by the whole com- 
munity. The farmers in the first place sell the ani- 
mals, the wagon makers make the wagons, the farmers 
raise the grain and hay to feed the animals, the black- 
smith shoes them, the harness maker makes the har- 
ness, and the money is scattered over the country to 
every class of people in it. Whereas, the profit aris- 
ing from the freights and fares of the railroad com- 
pany goes, most of it, into the hands of a few enor- 
mously rich men, and the balance into the purses of 
aliens who do not expect to become citizens of our 
country, and some here only upon the expectation of 
gathering as much as they can of the fatness of the 
land in the shortest possible space of time, and return 
with it to their own country. I say that, unless the 
element of cheapness comes in, they are an absolute 
curse to the country. 

"What effect have they had ? It is said they in- 
crease the prosperity of the State. Why, who ever 
heard of an able-bodied man in California going around 
and begging for a meal, or begging for the privilege 
of working, until these thousands of coolies were im- 
ported and employed by this company? What a spec- 
tacle was witnessed in San Francisco the other day 
when one of these magnates gave notice that a cer- 
tain number of men might be employed at $1.00 a 



THE CONSTITUTIONAL CONVENTION. 2$! 

day and find themselves, to do some work, and hun- 
dreds of men were sitting there all day long, more 
having offered than could be employed, begging for 
an opportunity to earn even so small a sum. Is not 
that scene witnessed every day? Are there not hun- 
dreds of able-bodied men willing to labor who are 
absolutely deprived of the privilege of earning, by 
their own labor, the price of the food that is neces- 
sary to sustain life? deprived of the liberty of carry- 
ing out the primeval curse which was placed upon 
man, to earn his bread by the sweat of his brow? 

"And we are told that this is private property; that 
we must not interfere with it; that the Central Pacific 
Railroad Company are the best judges of the prices 
at which they can run. Well, so they are the best 
judges, and so theywould be if they were guided by 
the commonest principles of fair dealing; but their 
judgment is altogether exercised upon the side of self. 
It was shown by the statistics read here the other 
day that out of the gross earnings the profits were 
more than ten per cent greater in California than any 
other railroad in the United States. I believe the 
highest was thirty-six per cent in the other States, 
while it amounted in this State, according to the re- 
port of the commissioners, to fifty-six per cent. Now, 
these men have made enough out of this magnificent 
corporation to be willing, hereafter to deal fairly. We 
know that they won't deal fairly, and it is our duty 
to make them do it. It is our duty to prevent dis- 
crimination between places. They start out their 
railroad track, and survey their line near a thriving 
village. Two or three cases of that kind happened 



±^2 LIFE OF DAVID S. TERRY. ; 

1 

between here and Lathrop. They would go to the -; 

most prominent citizens of the village and say, 'If • 

you will give us so many thousand dollars we will run • 

through here; if you don't, we will run by,' and in ■ 

every instance where the subsidy was not granted, J 

that course was taken, and the effect was just as they J 

said, to kill off the town. Here was the town of Para- I 

dise, in Stanislaus County; because they did not get i 

what they wanted, they established another town four i 

miles from there. In every instance where they were i 

refused a subsidy in money, they have established a i 

depot near to the place, and have always frozen them . 

out. As stated by the gentleman from Los Angeles, • 

General Howard, they blackmailed Los Angeles '. 

County $230,000 as a condition of doing that which ] 

the law compelled them to do. ! 

"Now, it is for us to do something to prevent this ' 

discrimination. We can say to them, and it is our • 
duty to say to them, 'If you undertake to publish to 

the world that you are able to carry a car or ton of ; 

freight, for $5.00, a hundred miles, you shall not ' 

charge the same rate for fifty miles. If the price i 

from Sacramento to San Francisco is $2.00, you i 

shall not charge more to Davisville or to any inter- ■ 

mediate point.' This is doing them no harm. They j 

say they charge less to San Francisco, because there I 
is competition, because people can send by another 

route and they lose the freight. Very good. If they ; 

are obliged to carry freight at a loss, then it is their ; 

interest to lose it. But they are not carrying it at a j 

loss. They certainly get pay for it or they would not ' 

want it. If there was a hundred tons of freight to < 



THE CONSTITUTIONAL CONVENTION. 253 

carry, and they were going to lose money in carrying 
it, they would rather some other kind of conveyance 
would take it. So it is absolutely certain that they are 
not carrying freight anywhere at a price so low as to 
lose money. Then if they do not lose money, they 
can afford to carry fifty miles at the same price they cio 
one hundred. They can afford to carry to any inter- 
mediate point upon the same road for the same that 
they do the whole distance. 

" I do not propose to detain this convention any 
longer in what I have to say, and end as I begun, by 
saying that the amendment proposed by the chairman 
of the Committee on Corporations ought not to be 
adopted; that in the very nature of things there can be 
no discrimination between individuals as to railroad 
facilities which is not unjust upon the very face of it, 
and we do not want any question raised or any trials 
had as to whether it was unjust or not. Say, ' You 
shall not discriminate.' If John Smith comes to you 
with a ton of freight treat him the same as if Peter 
Jones came to you with the same kind of freight, and 
give him the same advantages. The putting in of 
that aniendment, the insertion of that word ' unjust ' 
h"re, would give rise in every case to litigation and 
inquiry. Just have it understood that they shall not 
discriminate. We decide here in this convention a 
fact that is patent to every man, and we say, 'You 
shall not discriminate at all.'" 



CHAPTER XXXIII. 

His Speech Enlists the Sympathies and Support 
OF THE Sand-lot Element — With Them He 
Controls the Convention — His Masterly 
Efforts in Behalf of the People — Incident 
OF the Peachy Challenge. 

It will be seen by this speech, which was rather a 
lengthy one for Mr. Terry, that he took the most 
ultra grounds against corporation oppression and 
Chinese labor. To borrow an expression, he "out- 
Heroded Herod," and completely unseated the leaders 
of the sand-lot element in his vigorous language. It 
was the opportunity he had looked for, and he was not 
slow to take advantage of it. Even the men who had 
objected to his being sworn in, yielded to him the 
honors of a leader on their line of thought and action. 
Although strong and forcible as this speech was, the 
more conservative and able members of the conven- 
tion were well enough acquainted with him to know 
that he would not overstep the bounds of prudence 
and good judgment by leading these less-talented 
members, who were thrust into the convention on the 
crest of an uprising, into any foolish acts. He was 
now in position to restrain them from committing any 
acts of folly. "The Chinese must go," had been 
their battle cry, and no words could have been uttered 
• (254) 



THE COxN'STITUTIONAL CONVENTION. 255 

to please them better than those uttered by Mr. Terry 
in this debate. 

Upon the final adoption of the section, Mr. Terry^ 
desiring to give the railroad commissioners power to 
perform the duties of their office so as to produce the 
most good, after stating that in the beginning he was 
not in favor of a railroad commission, offered an 
amendment to section twenty, as follows: — 

' 'Resolved, That the Committee on Corporations other than 
municipal be instructed to further amend section twenty, so as to 
give the commissioners power to punish for contempt of their or- 
ders and processes in the same manner and to the same extent as 
courts of record. ' ' 

This resolution was adopted and the amendment 
made. Terry had now the support of the working- 
men, and he could work with an almost absolute cer- 
tainty of carrying every point he desired. He was 
therefore careful, for he was animated with a desire to 
aid in fashioning an instrument that would be adopted 
by the people and be a credit to its framers. Lark in 
and Beerstecher were his greatest admirers, and they 
were the most brilliant and promising representatives 
of the Kearney movement. 

On the question of the law of libel, an attempt 
was made to change the construction already estab- 
lished, in respect to the duties of judges and juries. 
In this discussion Mr. Terry said: "The principal 
reason for not changing it is, that the clause as it 
stands has been construed. It has been a part of the 
constitution for thirty years. If we amend it now by 
striking out the provision that the jury may judge of 
the law and the fact, will not the presumption arise 



^56 Life of david s. terry. ■ 

upon the construction of the section as passed by this 
convention, that it was the intention of the convention ■ 
to change the rule ? The questions of law and fact in • 
prosecutions of this kind are not separate as they are in i 
other cases. It is difficult to tell where the question of ^ 
fact ceases and the question of law begins. It is not ] 
sufficient in this prosecution to prove the truth in the 
case. If it were there would be no difficulty. But it is 
not sufficient to show that the fact is true. You must q-q 
farther and show that the motives were good and the 1 
ends justifiable. The fact as to whether the ends are ; 
justifiable or not is a question of law. I have no right 
to speak about a private citizen if it reflects upon his 
character; but if he is a candidate for office, or if he 
is applying for a position of trust, and a man comes j 
to me and asks me about his character, then I have \ 
a right to tell the truth about him, and the com- 
munication is privileged, but it is always a question \ 
of law as to whether it is privileged or not." ; 

On the question of limiting the pardoning power ! 

vested in the Governor to cases where new evidence 1 

has been discovered after judgment establishing the ' 

innocence of the party convicted, or the injustice of ■ 

the sentence, he opposed it with all his energies. In \ 
his remarks he said: — 

*Tt occurs to me there are very many instances 

where a party properly convicted should receive ex- . 

ecutive clemency. For instance, for a certain offense ^ 

the statute allows a punishment of from one to four \ 

years. It is absolutely in the discretion of the judge. J 

And in case of a first offense, where punishment has 

i 
been wrongfully inflicted, why should not the Gov- ^ 



THE CONSTITUTIONAL CONVENTION. 257 

ernor have a right to step in, after a lapse of a rea- 
sonable time, and relieve him from the remainder of 
his sentence? There may be instances where boys 
have wandered away from home and have committed 
crimes, and have been tried and properly convicted, 
and sent to prison. Suppose a case of this kind: The 
friends of the party, living in other States, think they 
can reform the boy. Nobody was ever reformed in 
San Quentin. No man ever left there a better man 
than when he went in. He is sent there to mingle 
with the most hardened criminals, and he becomes 
more and more degraded, and he leaves there an ac- 
complished criminal. Why should not the Governor 
be permitted, if the parents of the boy come from 
another State and ask that he be pardoned on condi- 
tion that he leave the State never to return, to grant 
the request ? This convention ought not to take 
away the power to grant relief to anyone who is 
wrongfully imprisoned or too harshly punished. I 
do not believe this convention is prepared to adopt 
an amendment of this kind, and this amendment in 
effect will do it." 

There is something concerning Mr. Terry's services 
in this convention which will challenge the attention 
of the reader. He seldom indulged in discussion, and 
when he did so it was briefly. On questions of great 
concern he was ready and willing to give his views 
in his own way, always keeping in mind the subject, 
and presenting them in the most practical manner. 
He wished to keep within the comprehension of a 
majority of the men representing the element he had 
dett:rmined to control. It was not a hard task for 



258 LIFE OF DAVID S. TERRY. 

him to do so. He had educated himself to that end, 
and adopted the plan of condensation before juries 
and in presenting his views in all his decisions and 
opinions when a justice of the Supreme Court. While 
he was very plain in speech, he was logical in reason- 
ing, and there are but few instances in the records of 
this constitutional convention in which his judgment 
was at fault and the propositions he championed were 
not adopted and made a part of the constitution. 
When the question of the liability of stockholders in 
corporations and joint stock associations came before 
the convention, the report of the committee made no 
mention of the liability that should attach to directors 
or trustees. Mr. Terry, knowing the frequency of 
embezzlements in banks and other monied institutions, 
introduced an amendment to the report, as follows: — 

"The directors or trustees of corporations and joint 
stock associations shall be jointly and severally liable 
to the creditors and stockholders for all moneys em- 
bezzled or misappropriated by the officers of such 
corporation or joint stock association during the term 
of office of such director or trustee." 

The object of this amendment was to protect de- 
posits in savings banks from misappropriation by 
directors or officers who really have no stock in such 
institutions. In presenting this amendment, Mr. 
Terry said: — 

"I desire to say a few words in explanation of that 
amendment, and the reason why it was offered. The 
whole business of these corporations or banks is under 
the control and management of the directors. The 
subordinate officers are elected or appointed by the 



THE CONSTITUTIONAL CONVENTION. 259 

directors, and there is no unfairness in making them 
sureties for the persons they have in their employ- 
ment. They have the power to exact bonds to in- 
demnify themselves. The only object is, so far as 
the stockholders of a corporation are concerned, to 
make these men who appoint the cashiers, tellers, and 
clerks, responsible for the faithful discharge of their 
duties. They can take a bond if they desire it. 
Under the laws it is the duty of these directors to 
exercise a supervision over the officers of these insti- 
tutions. I know instances, and they are very com- 
mon, in banks where thousands of dollars of money 
are being used daily, that these directors have failed 
for months and years to exercise the supervision which 
the law requires them to do, and why should not they 
be held responsible.'* I know one case where the by- 
laws of a bank required that the directors should, once 
every month, examine the books, count the money in 
the vaults, and examine into the business generally, 
and it came out in evidence that they had not per- 
formed that duty one time in three years. This js 
for the mere purpose of preventing such neglect cf 
duty. If these men understand that they are sureties 
for the officers appointed by them they will examine 
the books and the affairs of the bank. We know, too, 
that these robberies are not accomplished in a day or 
at one time. It is a systematic peculation running 
through years, which, when discovered, amounts to 
a very large steal. If these officers will attend to 
their duties, these peculations cannot occur, because 
they will discover them before they have fairly started. 
The case of the French Bank in San Francisco is one 



26o LIFE OF DAVID S. TERRY. 

where the directors never did perform their duty. 
The whole matter was left in the hands of the presi- 
dent, and the consequence was that, after a series of 
disastrous speculations in stocks, he left the world by 
means of suicide. I say these men have the appoint- 
ment of these officers, and, if need be, they can take 
a bond for their own indemnity." 

A numb jr of the most prominent and able members 
of the convention — Mr. Estee, Mr. Shafter, Mr. Wil- 
son, and Mr. Barnes — objected to the amendment, 
and declared it would weight down the constitution 
before the people, but Terry was getting to be quite 
a politician, and he answered them as follows: — 

"The effect of this amendment is simply to make 
'these directors or trustees — by whatever name they 
are known — the sureties on the bonds of the cashier 
and teller; that they will perform their duties prop- 
erly, placing them upon the same plane with other 
sureties. Suppose a case of a State treasurer or county 
treasurer. It is no excuse if I go on the bond of the 
State treasurer or a county treasurer, and he appro- 
priates the money. It is no excuse, I say, if I am 
innocent, and didn t know he was ging to do it; that 
I thought he was honest; that I ought not to pay the 
bond, as the gentleman from San Francisco, Mr. Wil- 
son, said. No, I went on his bond with my eyes 
open, and I am required to pay. I do not pay be- 
cause of any misconduct of my own. 

"If this amendment is adopted as a part of the con- 
stitution which is to be submitted to the people of 
this State, the gentleman from Ma in need have no 
fears that it will wei^ih down the constitution. You 



THE CONSTITUTIONAL CONVENTION. 26 1 

will have no more respectable men allowing themselves 
to be made decoys of. You will have no more figure- 
heads in the shape of boards of directors, who never 
go near the institution from one end of the year to an- 
other. You put the responsibility upon them and you 
will force them to do their duty. That is the only 
way you can force them. . . . But gentlemen 
get up and talk about this being a great outrage, and 
get very indignant over it. There is nothing that 
would give grounds for any such talk. It struck me 
as a provision which should go into the constitution 
in connection with the other provision making stock- 
holders liable. It struck me as a provision, the need 
of which I have seen in this State many times, and it 
would prove a safeguard to the people and to the 
stockholders. It would prevent a repetition of the 
too common abuses of the past, without doing injus- 
tice to any honest man. I do not know who was al- 
luded to when it was said by a gentleman on this floor 
[Mr. Barnes], that perhaps some of the members at 
the great Judgment day would expect to sit alongside 
of the supreme judges or associate justices. When 
that day comes, if come it does, when we are wafted 
across to the other shore, I shall not be surprised to 
see at that very moment the immaculate chairman of 
the military committee of this convention the eminent 
commander of the ceremonies there. [Laughter.] 

" Now, I think the sense of this convention is that 
something should be done to prevent the robberies 
of the public by corporations, and it does occur to 
me that this is about the most effectual means of pre- 
venting it. It occurs to me that the ConstiLution is 



262 LIFE OF DAVID S. TERRY. 

the place in which to put it, where it cannot be 
amended or repealed at any time by a hasty Legislature. 
I do not approve of the amendment offered by the 
gentleman from Alameda, Mr. Van Dyke, and would 
not accept it, because, if I did, I fear that sometime in 
the future the taw which now makes these officers 
appointed by the directors, would be changed, and thus 
the provision of the constitution would be evaded 
and defeated. They might thus defeat the action of 
this convention. I propose to put it here as a safe- 
guard to the people and where it cannot be amended 
or repealed, and let it stand for all time as a protection 
to the people of this State against the robberies which 
are committed by the officers of these corporations. 
[Applause.] Gentlemen need not be afraid that1;his 
will weigh down the constitution. Put that provis- 
ion in there and it will, like charity, cov^er a multitude 
of bad provisions when it comes to go before the peo- 
ple for ratification." 

Mr. Casserly inquired, before the fiinal vote was 
taken, if the gentleman from San Joaquin understood 
the amendment to include "charitable, benevolent and 
religious associations." 

"I deem it includes all corporations," said Mr. Terry. 
" I do not think a charitable or religious corporation 
has any better right to steal money than a lay corpo- 
ration." 

The amendment was adopted, and it furnished the 
strongest argument by the corporation against the 
adoption of the constitution before the people. 
Money was used in all parts of the State, but the peo- 
ple gave their emphatic protests against all such 
methods. 



tHE CONSTITUTIONAL CONVENTION. 263 

Mr. Terry was opposed to the State, counties, or 
any municipal corporation loaning their credit in aid 
of any person, association or corporation, and intro- 
duced the section which became a portion of the con- 
stitution on that subject. Mr. Terry was a strong 
advocate of limiting the term of the legislative session 
to sixty days, basing his opinion upon the constitutional 
provision which excluded all special legislation, which 
served to consume so much of the time of former 
Legislatures. He was right in view of an honest Inter- 
pretation of the provision, but, like many other pro- 
visions of the constitution, that one has been evaded, 
and there are more attempts at special legislation now 
than under the old constitution. The provision mak- 
ing the title express the subject of a proposed law 
has been totally ignored by experts in legislation, and 
the proposition to amend the constitution by extend- 
ing the t^m to one hundred days is simply the result 
of the work of these experts In contravening the con- 
stitutional provision. Of course this provision, like 
all others contended for by Mr. Terry, was adopted, 
having, as they had, the support of the labor element, 
which relied upon the judgment and advocacy of so 
eminent a leader, and a man whose honesty, integrity, 
and general knowledge of laws had never been im- 
peached either directly or by innuendo. 



18 



CHAPTER XXXIV. 

His Arguments against Stock Speculatoins — 
Views upon Revenue and Taxation — Sharp 
Discussions between Members on the Taxa- 
tion OF Evidences of Indebtedness — Terry 
Triumphant. 

His speech in the convention on the provision 
affecting the stock market and mining stock sales is 
worthy of a place in this book. The article or section 
submitted was one taking from the Legislature power 
to authorize lotteries or gift enterprises; also to regu- 
late or prohibit the buying and selling of the shares of 
the capital stock of corporations in any stock board, 
stock exchange, or stock market under the control of 
any association. That all contracts for the sale of shares 
of the capital stock of any corporation or association,on 
margin or to be delivered at a future day, shall be 
void, and any money paid on such contracts may be 
recovered by the party paying it by suit in any court 
of competent jurisdiction. A motion was made by a 
member from San Francisco to strike out that part 
which virtually stopped dealing in margins, to which 
Mr. Terry objected in language which was almost 
prophetic. The whole State had been more or less 
disturbed by wild speculations in stocks, money being 
drained from every avenue, even from the purses of 
( 264 ) 



THE CONSTITUTIONAL CONVENTION. 265 

laboring men and servant girls, in their mad endeavors 
to become suddenly rich. Business was partially par- 
alyzed, and every industry was lagging. In this con- 
nection Mr, Terry voiced the sentiments of the better 
class of people when he said: — 

"The object of that provision is to place these 
contracts, which are, in any way you may regard them, 
mere gambling contracts, upon the same footing that 
other gambling contracts are, and let these parties 
take the ' ame chances that other gamblers do. The 
gentleman from San Francisco objects to the phrase, 
'sales on margins.' That term, I believe, is well 
understood. I suppose, perhaps, if the gentleman is 
himself ignorant of the term, he is the only gentleman 
from the city who is. A great many of them have the 
very best of reasons for knowing what that phrase 
means, and they will never forget that knowledge, be- 
cause they have paid very dearly for it. Sales on 
margin compose the principal part of the business in 
these stock boards. It is the very worst species of 
gambling that can be indulged in. In almost any 
other gambling a man knows what he is going to lose. 
If he puts up his money on a game of faro he knows 
what he is going to lose; but when he buys stock on a 
margin he never knows where his losses are going to 
stop. In the language of the gentleman, 'he is called 
on for more mud.' Men do not buy stock. That is 
a mere pretense; the seller has no stock in his pos- 
session; the buyer don't want any stock, and the 
seller knows it. . . . 

"If this provision is adopted, as I think it will be, 
then no man can sell stock unless he has got it to sell, 



266 LIFE OF DAVID S. TERRY. 

because he is required to deliver the stock at the time 
of the sale; and whether he chooses to sell for cash or 
not, he must have it and deliver it when he sells. It 
is not a perfect remedy, but it is some remedy. Per- 
sons will not have so much object in putting up and 
down the price of stocks, which is simply done for 
the purpose of robbing the people. If these men 
who have been indulging in that kind of swindling 
had justice meted out to them in the same measure 
and at the same rate that it has been meted out to 
poorer though less guilty persons, they would have to 
live more than a thousand years, or cheat the State out 
of years of service. We propose to put some sort of 
check upon such operations. We propose to say that 
they are dealing with a man as other gamblers, and 
that it is at his option whether he will pay them or 
not; that if he objects, he can sue them and recover 
his money. 

"It has been said that the effect of this effort will 
be to drive the Stock Board to Virginia City. Well, 
as far as I am concerned, and I think the people of 
the State are of the same opinion, I would be perfectly 

willing to see the whole business in a climate 

very much farther south than Virginia City. It would 
be 'good riddance to bad rubbish.' The country would 
be prosperous now but for that. We have provided 
rises and falls in this Stock Board. Whenever the 
season has been prosperous some wonderful discovery 
of millions of ore is made in the fifteen-hundred-foot 
level, or the twenty-four-hundred-foot level of some 
mine, and a great excitement is raised and kept up 
until the profits arising from the wheat crop have been 



THE CONSTITUTIONAL CONVENTION. 267 

Stolen from the honest farmers, and then it is discov- 
ered that what was supposed to be a large body of ore 
was only a little bunch that did not amount to much 
anyhow; the mine peters out and there is nothing left 
of it except a few miserable persons who have lost 
their homesteads or their savings of years, and are 
driven into the almshouse or into the penitentiary in 
time. . . . An attempt was made last winter to 
try to do away with some of the evils which flow from 
dealing in stocks, and it is a matter of public history 
as far as newspapers can make history, that a bill was 
presented to parties in San Francisco for $28,000, the 
expenses in defeating that bill in the Senate, and the 
bill was paid. I do not know whether it was trans- 
ferred to the 'India rubber account,' or what was done 
with it. That was to prevent the passage of a bill 
regulating this traffic. Now, it is for us to protect 
the people against it. We cannot do it as fully as the 
Legislature can, but we can make these contracts void 
and in that way we can do away with mor-e than one- 
half of the injury and loss which are inflicted upon the 
people by this manner of dealing." 

On limiting the powers of the Legislature; on legis- 
lative apportionment; on the making appropriations 
and the power of the Governor to exercise his discre- 
tionary veto on objectionable items contained in the 
general appropriation bills; providing for the approval 
of amendments to the Federal constitution, and all im- 
portant questions relative to the executive and legis- 
lative departments of the State government, Mr. Terry 
took an active interest in, and did most excellent work 
for the State. In discussing the revenue question, a 



268 LIFE OF DAVID S. TERRY. 

question upon which so many differ, and which re- 
quired the best talent of the convention to adjust, Mr. 
Terry took a very active part. Before entering into 
any discussion upon the subject, the question of the tax- 
ation of mortgages, evidences of wealth and franchises 
came before the convention. Before he would in- 
dulge in any remarks direct, he said: — 

"What the opinion of a majority of the people of 
this State may be, I do not know. What the people 
demand I do not know. I have never received any 
instructions in regard to what the opinion of the people 
ni.iy be on this subject. But I proposed to them.be. 
fore I came here, and I propose now to do, as far as 
my action and words-can have any influence, what, in 
my opinion, will be for the best interests of the people 
of the whole State. When I have done that I shall 
have done my duty. Whether the people shall ap- 
prove of the constitution after we get through with it 
is their business and not mine. I do not propose to 
stop to inquire whether it is popular or not popular. 
I propose to exercise my best judgment as to what is 
right, and I do not care whether it is popular or not 

"Now, the propositions of these gentlemen seem to 
be two — I allude to the gentleman from Sacramento 
(Edgerton) and the gentleman from Yuba (Belcher) 
— first, that evidences of indebtedness are not prop- 
erty; second, that if they are property, it is impol- 
itic to tax them. A great many people live very 
comfortably on this kind of property, and, if I had a 
few thousands of these conclusions of law, I could 
quit work and live very easy. And I should think if 
I had $100,000 worth of bonds of the State of 'Cali- 



THE CONSTITUTIONAL CONVENTION. 269 

fornia, or of any county in the State of California, I 
would consider it very tangible property. It would 
furnish me with food and lodging, clothing and drink, 
and all the necessaries and luxuries of life. If I had 
all these things why should I not pay taxes on them? 
I could change it into real estate to-morrow. I could 
buy land and houses and all kinds of property. It 
affords me a revenue greater, perhaps, than the land 
would afford. Why should I not pay taxes on that 
property as well as my neighbor, who pays upon his 
land and house ? Why should I be allowed to invest 
$100,000 in bonds and sit down and rent a house, or 
board at a hotel, and make no contribution whatever 
to the support of the government, which protects me 
in my personal property, while my neighbor is com- 
pelled to pay taxes on everything he. has i*. There is 
no fairness, or justice, or honesty in such a propo- 
sition. The gentleman frOm Yuba contended that 
growing crops should be taxed. That while neither 
bonds, nor notes, nor the interest which they bear, 
should be taxed — " 

Mr. Belcher — 'T don't want them exempted." 
Terry — "But he excepts taxes on bonds which 
produce interest — the notes that produce interest. 
Why, the debt grows every day by interest. The 
growing crop is but the interest which the land pro- 
duces. Why should he insist upon taxing the interest 
which the land produces, and refuse to tax the in- 
terest which the nofe produces? 

"My friend from Sacramento [Edgerton] says that 
to attempt to tax indebtedness in any shape is to 
manufacture a nation of liars; that men are not honest 



270 LIFE OF DAVID S. TERRY. 

enough to tell the truth when you ask them how much 
they have done ; and when the assessor comes round 
he will meet men who will perjure themselves. I do 
not believe that a majority of the people of this State 
will perjure themselves for the purpose of escaping 
taxation. I don't believe that, when the assessor goes 
to a man and asks him how many notes he has, how 
many solvent debts he has, for the purpose of assess- 
ing him, he is going to commit deliberate perjury. 
To be sure, men will sometimes do it, but I think it 
will be found to be the exception, and not the rule. 
The rule will be that true statements will be given, 
and the roll will be greatly increased. I think the 
other proposition, to deduct what a man owns from 
what is owing to him, would be productive of much 
greater abuse, and oj.en a wider door for fraud and 
perjury. I think fairness and justice require that 
every man who owns property in this State, whose 
property is protected by the laws of the State, should 
pay his fair proportion of taxes upon the value of his 
property." 

The tenacity with which Judge Terry clung to the 
principle of equal taxation, and that all persons should 
pay taxes upon the property which supported them, 
and in the possession and enjoyment of which they 
were protected by the State government, led to its 
final adoption in the face of the fact that the most 
eminent lawyers, who represented large banking cor- 
porations, and who were members of the convention, 
resisted the provision with all the ability and skill at 
their command. While it was the most popular side 
pt the question in the eyes of the sand-lot element, 



THE CONSTITUTIONAL CONVENTION. 27 1 

he knew it was right and just, and he was fearless in 
its advocacy. In this convention he was erecting a 
supporting column to the castle that contained the 
jewel he so highly prized, and when acting he gave 
no thought to this man or that, to this interest or that, 
in the formation of a constitutional compact between 
the people and the State. He seemed to have been 
imbued with the words of Cardinal Woolsey in his ad- 
vice to Henry the VHL: "Be just and fear not. Let 
all the ends thou aimest at be thy country's, thy 
God's, and t uth's." 

An incident occurred during the session of the con- 
stitutional convention which may be related in this 
connection, showing that he fully appreciated the 
odium of dueling. Ex-Governor H. H. Haight, who 
had been elected a member of the convention, died, 
and it became the duty of the convention to elect his 
successor. Mr. George Peachy was presented by the 
friends of the dead member as their choice. Judge 
Terry opposed his election, and his power in the con- 
vention was absolute if insisted upon. The base of 
his objection was that Peachy had violated the rules 
of society by sustaining meretricious relations with a 
woman in the presence of his family for about twenty 
years before marrying her. It was generally under- 
stood that Terry would not accept a challenge to fight 
a duel from anyone, and when Peachy heard of the 
nature of the objection, he promptly challenged Terry. 
When the challenge was presented to him he smiled 
sarcastically and said: "Peachy knows I will not ac- 
cept, or this challenge would never have been sent. 
I have paid the penalty of one duel, and will never 



2/2 LIFE OF DAVID S. TERRY. 

fight another. If he wants to meet me on any other 
ground than that of a duel, he can have the opportu- 
nity and the privilege. I will be ready for him." 

Mr. Peachy was a Southern gentleman of the rad- 
ical school, and was in no sense a formidable gentle- 
man, being near-sighted and wearing glasses. The 
idea of his approaching Judge Terry in such a combat 
was a little ridiculous, and the incident was one which 
gave expression to the fact that he knew Terry would 
not accept before the challenge was sent. Judge 
Terry's opposition prevented his election, and J. West 
Martin, of Oakland, was chosen to fill the vacancy. 



CHAPTER XXXV. 

His Labors in Framing the Judiciary System — 
Recognized as the Leader of the Convention 
— His Faith in the Adoption of the New 
Constitution — He Retires from the Conven- 
tion Both Honored and Respected — A Recog- 
nized Intellectual Force. 

Having had much to do with framing the several 
sections in the judiciary department of the constitu- 
tion, being the most active member of the committee, 
and more fully understanding the necessary changes 
under the proposed new order of things, he said but 
little by way of discussion. He seemed to be the 
embodiment of an interrogation point, to whom all ■ 
questions were addressed, and his answers and ex- 
planations were brief. All amendments changing the 
original report, except in a few cases, were promptly 
rejected, and the result was a very perfect judicial 
system under a complete reorganization and change 
in the judiciary department of the State government. 
He never clouded his ideas with sophistry. His lan- 
guage was so plain that no doubt was allowed to linger 
around his expressed sentiments. An attempt was 
made to prevent an appeal from a verdict in a justice's 
court beyond the Superior Court, as follows: " Provided^ 
That no appeal shall be taken from any judgment in a 

( 273 ) 



274 LIFE OF DAVID S. TERRY. 

justice's court, in a case of forcible entry and detainer, 
except to the Superior Court of the same county or 
city and county, and the judgment of the Superior 
Court thereon shall be final." 

In opposition to this amendment, Judge Terry 
made one of his best efforts, as follows: — 

"This gives the plaintiff the absolute right to de- 
prive the defendant of the right of appeal to the Su- 
preme Court if the case is decided against him. By 
bringing the action before a justice of the peace, the 
defendant is deprived of the right of appeal to the 
Supreme Court. If this amendment should prevail 
there ought to be a further amendment to enable the 
defendant to transfer the case to the Superior Court, 
by giving a bond for costs. The only reason I have 
heard advanced for this amendment is that there are 
a large number of defendants w^ho are without money, 
and that no judgment could be collected; and even the 
costs the plaintiff would be compelled to advance in 
nine cases out of ten. That may be true, but there 
are cases which involve very considerable interests, 
which would be without the jurisdiction of justices of 
the peace. It might include the possession of one 
hundred and sixty acres of land, worth $20 an acre, 
and it might involve a lease upon it which has twenty 
years to run. I can see no reason why the parties 
should not be allowed to appeal. I can see no good 
to be accomplished by this amendment. Under the 
system which prevailed before 1864, in this State, these 
cases were commenced in the Justices' Courts, and 
could be appealed to the County Court, and from 
there to the Supreme Court. I can see no reason why 



THE CONSTITUTIONAL CONVENTION. 275 

the defendant, if he is able to give bonds to secure the 
plaintiff, should not have the right to go to the Su- 
preme Court and have his case reviewed." 

The amendment was voted down. 

When the proposition to provide two justices of the 
peace was before the convention, Judge Terry opposed 
it in one of his characteristic speeches, which is here 
presented in full, and although the proposition carried 
his arguments remain good frorn his standpoint, and 
his ideas as expressed remain correct in every partic- 
ular. It was a change which the committee had 
thought best to make in their original report to the 
convention. Judge Terry said: — 

"The reason which led the committee to make this 
change will suggest itself to everybody, or at least to 
those who have had any experience in watching the 
proceedings before justices of the peace. If justices 
were salaried officers I would have no objections to 
having a dozen in each township, as thick as telegraph 
poles. But justices of the peace in this State depend 
upon fees for their emoluments of office, and where 
there are two, each having jurisdiction in the same 
class of cases, and in the same territory, they are com- 
peting against each other, and they are almost abso- 
lutely controlled by attorneys who practice in their 
courts. The evil has got to that extent that in a 
majority of cases where there are two justices of the 
peace, people don't go through the form of a trial at 
all. The suit is brought into the Justice's Court by 
the attorney who owns the justice, and the defendant 
simply puts in an answer and lets the case go, and then 
takes an appeal to the County Court, where he tries it 



2/6 LIFE OF DAVID S. TERRY. 

before a salaried officer, who is not indebted to any 
attorney. That will always be the case where you 
have two justices of the peace with the same jurisdic- 
tion. They want business and will bid to get it; and 
in order to get it they must decide in favor of the 
plaintiff. I would like for some gentleman to tell me 
how many cases he has known where a justice of the 
peace decided in favor of the defendant. . . . This 
has been an evil of long standing, and there has been 
no attempt by the Legislature to correct it. The only 
way is to remove the temptation. If there is one 
man who has sole jurisdiction, he is under no obliga- 
tions to anybody for bringing him business, for the 
business has got to come to him. But in ninety-nine 
cases out of one hundred, under the present system, 
the plaintiff gets judgment." 

The writer has but one aim in view in presenting 
the remarks of Mr. Terry on the various questions 
which came up for discussion in this convention, and 
that is to show the practical- side of the man's char- 
acter. It will be observed that he never indulged in 
any flights of oratory, as many did. Whether in ad- 
vocating or opposing a proposition, he was plain, 
terse, and logical, and he meant to be understood by 
those who seemed to have confided their cause into 
his keeping: and it is proper and just to say that he 
did not violate nor abuse his trust. His earnest, hon- 
est labors in that convention clothed him with new 
life and brought to him thousands of friends and ad- 
mirers who had stood aloof from him in years gone 
by, schooled as they had been in the belief that he was 
a monster whose garments were dyed in the blood of 



THE CONSTITUTIONAL CONVENTION, 277 

a martyr. The prejudices of the past were fading 
away gradually, and this service, so far removed from 
the plane upon which it had been notoriously standing 
in the minds of his fellow-citizens, and particularly that 
class which looked upon "Chivalry" in Terry as a 
menace to freedom, and who were nursing the hatred 
to such an extent that they opposed his being sworn 
in as a fellow-member, opened up to him a new field. 
The bitter scenes of his past life which had been car- 
icatured in history and falsely placed in the mirror 
which was presented to the popular gaze by the spirit 
of partisan hatred and prejudice, were not so damag- 
ing to his ambition, of which he retained sufficient to 
guide him parallel with his inherent sense of honor. 
It was this sense of dignity that gave him the power 
to rise above the troubles that surrounded him and 
subdue the adverse feeling that people entertained 
to his discredit. Could he have died at that time his 
name would have been inscribed upon honor's shield 
and his memory would have been cherished by a 
grateful people. 

Although the new constitution which the conven- 
tion framed and presented to the people for their ac- 
ceptance was not in all respects as he desired, there 
was enough in it that he considered an improvement 
on the old one to cause him to go before the people 
and urge its adoption. He combated the moneyed 
influence brought to bear to defeat it in many portions 
of the State, and there was not an advocate on the 
rostrum whose words were more generally listened to 
and heeded. He was as logical on the rostrum as he 
was on the floor of the convention, and he denounced 



2yS Life of hAVit) s. TfeRRV. 

the opposition as enemies of the people and tools of 
the monopolists and the combined moneyed power; 
and when the constitution was adopted, he was ten- 
dered the nomination for superior judge of San 
Joaquin County without respect to party, which 
he promptly refused. He could not afford it, as it 
would ruin his practice, which was very extensive and 
brought him a revenue four times as great as the sal- 
ary of superior judge. Aside from this, he had been 
a member of the Supreme Bench and its chief justice, 
and as in former times, when a lad of thirteen years, 
he had been a soldier in the war for Texan independ- 
ence he could not sink the soldier in the schoolboy, 
he did not care to assume less official honors than he 
had worn with distinguished ability. 

His labors in this convention were arduous, and 
the constitution made and adopted may be justly 
styled his handiwork. He did not go there for any 
display of forensic talent, but to work diligently and 
faithfully for the people of the State. On every page 
is the imprint of his genius and his practical mind. 
There were other emment men in that body whose 
talents were highly appreciated, but they were mostly 
arrayed against the majority and combated the very 
provisions which seemed to be demanded by the peo- 
ple. The convention vas primarily called simply to 
amend the old constituiton, but the radical elements 
were determined to make a sweeping change, and 
they succeeded. Let the reader consult the constitu- 
tional debates as given in the minutes of that conven- 
tion and he will there find that the master spirit was 
ex-Judge David S. Terry. He was bold in his com- 



THE CONSTITUTIONAL CONVENTION. 279 

bat with the friends of the corporations who attempted 
to fashion an instrument by which they could evade 
their responsibiHties to the State government and in- 
fringe upon the rights of the people. The threat that 
capital would leave the State and seek other fields for 
investment was one which he looked upon as a lever 
to secure their personal object. 



19 



CHAPTER XXXVI. 

Efforts of Capitalists to Nullify the Constitu- 
tion — Defeat of Its Friends at the Polls — • 
Terry Defeated as a Candidate for Presi- ^ 
dential Elector. 

The adoption of the new constitution was a triumph 
for Judge Terry, but the fruits of the victory remained 
to be gathered in putting the wheels of government 
in motion under its provisions. Capitalists and cor- 
porations did not cease the warfare, although the 
people had accepted it by a positive majority. They 
saw that attacks could be made upon it through the 
Legislature and the courts, and to secure these they 
put forth their united energies. At the election of 
1880 the Republicans elected the State ticket and 
secured the Legislature. The Workingmen were well 
represented in the assembly, and were led by men of 
ability not identified with the Kearney element, but 
friendly to the constitution. Judge Terry had divested 
himself of all party prejudices in the matter, and be- 
came the enibodiment of a great commoner. His 
office became the nursery of aspiring statesmen who 
were anxious to make a good record, and the advice 
they received was such as to disarm them of the sus- 
picion that he had any ether ambition than to see the 
constitution and its important provisions put into prac- 
(280) 



POLITICAL CAMPAIGN OF 1 88o. 28 1 

tical Operation by the most wholesome laws. He had 
insisted upon making it both prohibitory and manda- 
tory in many of its important provisions, and in the 
absence of legislation it was self-executing, and con- 
tained the spiritual essence of life. 

He was now in the full flood of well-merited popu- 
larity, and was highly esteemed for his acknowledged 
abilities as a man of profound thought and practical 
statesmanship, so much so indeed that his own party 
considered him a proper person to receive political 
honors, and, when the State convention met to select 
its representatives on the presidential electoral ticket, 
in 1880, he was chosen as one of them. He accepted 
the honor, and had a right to believe that time and 
the services which he had performed had covered the 
scars of former years. He had conducted himself in 
a manner commendable during the ten years preced- 
ing, and his popularity where he was known was con- 
ceded. At all events he proposed to test his standing 
in a way that would not invite personal antagonisms 
with any individual for place and power. 

After he had received and accepted the nomination 
he had a conversation with Hon. B. F. Lanofford, 
State senator of San Joaquin County, and a promi- 
nent politician, with reference to his candidacy. Lang- 
ford was an old and valued friend in whose judgment 
as a politician Terry had implicit confidence. He 
had made him the custodian of his property when he 
left the State to go South during the war, and he 
knew he was his friend. The conference on Terry's 
part was to ask his advice and ascertain his judgment 
in the matter, and Langford, who was outspoken and 
blunt, and being more of a politician than Terry, said: 



282 LIFE OF DAVID S. TERRY. 

"You ought not to have accepted the nomination. 
You know you killed Broderick in a duel, and you will 
be defeated." 

"Yes," said Terry, "everybody knows that, but that 
was a long time ago, and the people understand it now 
much better." 

"Then there's your Confederate war record," said 
Langford. - 

"Yes," said Terry; "but I will be supporting one 
of the bravest Union generals." 

"Well," replied Langford, "you have my judgment. 
I know you have conducted yourself very properly 
for a long time, and have made many warm friends, 
but not in a political sense. Remember what I have 
said, and don't forget that a good business such as you 
have now must necessarily suffer during the time you 
spend in doing the duty you will owe to your party in 
accepting this position of honor without profit." 

Judge Terry made several speeches during the 
campaign, and in one place he was interrupted by 
several parties in the audience who made reference to 
his duel with Broderick, showing that they had not 
forgotten that unfortunate affair. He was greeted 
very cordially wherever he appeared on the rostrum, 
and it is probably true that the incident of almost 
thirty years previous, which had made him notorious 
to many then unborn, gave him larger audiences than 
he otherwise would have had. There were occasions 
on which curiosity divided attention with his abilities. 
At one place in the northern portion of the State his 
attention was directed by a friend to a woman with 
three children who was telling them that he was the 



I 



POLITICAL CAMPAIGN OF 1880. 283 

man who killed Broderick. He was sitting near by 
at the time, and before he could speak to the woman 
she had taken the boys and left the audience. They 
had evidently attended out of mere curiosity, and that 
being gratified they had gone home. 

The day of election came and the result was that 
Terry was defeated, while all the balance of the Dem- 
ocratic ticket was successful. The majorities were 
small, and he was defeated by less than fifty votes. It 
was generally supposed that the " blood of the mar- 
tyr" was still flowing, but some credited his defeat to 
the presence of the Grand Army of the Republic in 
response to his Confederate war record. The fact 
that Hon. Henry Edgerton, one of Broderick's most 
intimate friends and supporters, defeated him, would 
indicate that the duel had not been condoned. 

Although Judge Terry was a man who could accept 
defeat ordinarily with dignity and stoical indifference, 
he was not at all philosophical on this occasion. The 
idea of being selected from his associates on the ticket 
as the only martyr, chafed him to excess, and he gave 
vent to his feelings in the most forcible language 
when the subject was broached on several occasions. 
It taught him politics such as he had never known be- 
fore, and he remembered the words of Langford. He 
had tested the sentiments of the people and it taught 
him that an established prejudice, correct or false, 
was the greatest tyrant in the world. It was strange 
that one in whom the people placed so much confi- 
dence as an attorney, and whose honesty and integrity 
as such had never been questioned or assailed, should 
be singled out and condemned as a politician, when 



284 LIFE OF DAVID S. TERRY. 

politics were demanding reform at the hands of such : 
sterling characters as that possessed by ex-Judge 
Terry. 



CHAPTER XXXVII. 

Terry as a Delegate to the San Jose Conven- 
tion IN 1882 — His Support of General Stone- 
man FOR Governor — Stoneman Nominated and 
Elected — Violates His Promise — Terry De- 
serts Him. 

In 1882 another election was to be held for State 
offices, and a Legislature to serve for a full term. By 
this time Judge Terry had become aggressive and 
ambitious. He did not aspire to official position. He 
had had all the experience he cared for in that Hne, 
but he had been studying politics. The Democrats 
of San Joaquin County looked upon him as a cham- 
pion, and they knew he was popular with the people 
where he was best known. They loved his sterling 
honesty and independence. They knew he was equal 
in abilities to any man in the State, and they had im- 
plicit confidence in him. They knew he would not 
betray them and he was chosen as a delegate to the 
State convention, which was to be held at San Jose. 
The most prominent name mentioned as a candidate for 
Governor was that of George Hearst, a man of mil- 
lions, without any other particular qualification for the 
office. While Terry had no objections to the man, he 
was conscientiously and constitutionally opposed to all 
political capitalists and members of corporations. He 

(28s) 



286 LIFE OF DAVID S. TERRY. 

believed it meant fraud and corruption at the ballot 
box, and he proposed to defeat him if possible. Gen- 
eral George H. Stoneman had made an enviable rec- 
ord as a member of the State Board of Railroad Com- 
missioners, and his popularity on the anti-monopoly 
question was universal. Terry went to the convention 
as the friend and special advocate of Stoneman. There 
were other candidates seeking the nomination, but 
these two were the riiost prominent. Hearst was 
backed by the San Francisco delegation and Chris. 
Buckley, who was called the Boss, and his nomina- 
tion on the first ballot seemed imminent. 

When Terry arrived with his country delegates he 
could find no Stoneman headquarters, and no organi- 
zation. He called together a few of his friends, 
opened up headquarters and brought the Stoneman 
forces together. He ascertained that the Hearst 
forces were not all solid on the first ballot, and he so 
managed that other candidates could be kept in the 
field until he could control many of the floating dele- 
gates. He was industrious in his efforts to convince 
the country delegates that Hearst was making a " mon- 
eyed fight, "and he succeeded. Stoneman was presented 
by the delegates from the southern portion of the State, 
and had a solid and unbroken support from that section. 
Hon. Stephen M. White, of Los Angeles, presented 
his name to the convention in a forcible speech, and 
Terry seconded his nomination. When the Hearst 
forces saw the enthusiasm that followed the mention 
of Stoneman's name, it dawned upon them that they 
must use vigorous means or their champion would be 
defeated. A few votes were taken with Hearst in the 



1 



I 



TERRY AS A POLITICIAN. 287 

lead, when other candidates who had not sufficient 
support to warrant their success, withdrew, and Stone- 
man received the nomination. It was Terry's fight, 
and he was accorded the honors. 

In speaking of the skill employed by Judge Terry, 
one of the prominent leaders of the party and an able 
editor of a newspaper, said "that the work exhibited 
the most consummate tact and ability on the part of 
Judge Terry, who rallied the demoralized forces of 
General Stoneman and secured a victory divested of 
every semblance of trickery, fraud, or bombast. His 
labors were all performed in that dignified, open, and 
honorable manner which defied adverse criticism. It 
was simply the result of a splendid organizer of politi- 
cal forces." 

The astonishing majority that the ticket received at 
that election, amounting to a political revolution, pro- 
claimed the fact that Judge Terry was far-seeing in 
his estimate of the popularity of men. Stoneman, 
who led the ticket, received the la-gest majority of 
any candidate for Governor that had ever been elected 
in the State, amounting to over twenty-three thousand. 
It was but natural that after such a brilliant victory 
Judge Terry should assume some influence with the 
administration, and under the circumstances the Gov- 
ernor could do no less than admit him into his confi- 
dence. He was promised something in the dispensa- 
tion of patronage. For himself he desired nothing, 
but he had one friend in the person of ex-Sheriff Hall, 
of Fresno County, for whom he asked the position of 
warden of San Quentin prison. The Governor, after 
expressing his obligations to Terry, assured him that 



288 LIFE OF DAVID S. TERRY. 

his request should be granted. When Paul Shirley 
received the appointment Terry was greatly displeased, 
and true to his nature and disposition, in losing confi- 
dence and trust in a man's honor and integrity, he 
vowed never again to cross the threshold of the Ex- 
ecutive Chamber. By this act of perfidy Governor 
Stoneman lost his most valuable counselor and best 
friend, and as a consequence his administration was a 
failure. 

Judge Terry had estimated the character of the 
man from his public record as an officer, both military 
and civic. He did not believe he had been swayed 
by corrupt influences, but he attributed it to a weak- 
ness which he did not expect to find in an old army 
officer who had won distinction. He knew that no 
man unless a coward or a knave would violate his 
word of honor, and this action of the Governor pre- 
sented a dilemna. In speaking of this transaction 
with a friend who had observed that the Governor 
had the best of him, he said, " Yes, he is powerful in 
his weakness." 

Judge Terry was a man who could be reached only 
through his convictions, and he was willing to trust 
men on the same basis until they proved to the con- 
trary by their actions. In this he was generous, but his 
observation was keen and his judgment seldom at fault. 
He believed that a public office was a public trust, and 
would disdain to stand behind and become in any way 
responsible for a man who lacked the courage to do 
right. 



CHAPTER XXXVIII. 

The Notorious Stockton Convention of 1884 — 
Field as an Aspirant for the Presidency — 
THE Anti-Monopoly Sentiment — Judge Terry's 
Estimate of Field's Honesty — Strong Lan- 
guage. 

The political forces were again being marshaled for 
a national conflict in 1884. The dissatisfied elements 
were crowding their sentiments before the people, 
demanding redress for numerous grievances, and the 
leaders of both the great political parties were striving 
to capture the vote of the workingmen who had been 
organized as a separate and distinct body politic. 
They were opposed to corporate influence and capital. 
The Southern Pacific Railroad Company had refused 
to pay its taxes for several years, as assessed under 
the provisions of the constitution. The State control- 
ler, who had been hoisted into power by Denis Kear- 
ney, had refused to accept a sum of money amounting 
to some $900,000, which had been tendered as a par- 
tial payment of taxes to the State, from the attorney- 
general, under an agreed stipulation, and while this 
question was under discussion the Democratic State 
Convention assembled at Stockton for the purpose 
of electing delegates to the national convention, to 
nominate a candidate for President of the United 
States. The anti-monopoly sentiment had taken pos- 

( 289 ) 



290 LIFE OF DAVID S. TERRY. 

session of the leaders, and, with a very few exceptions, 
they came to that convention prepared to throw a 
bombshell into the camp of the corporation forces, the 
attorney-general and several other distinguished mem- 
bers of the party being the principal objects of attack. 

This was to be done for the sake of policy and suc- 
cess at the ballot box. While the great railroad sys- 
tem of the State had been a grand pioneer in its ma- 
terial development, it had become too powerful and 
exacting. It had not, as people thought, meted out 
justice to them, and had defied the constituted author- 
ities in bearing its share of the burdens. The cry of 
oppression provided politicians and demagogues with 
ammunition to make a warfare against it, and such 
men never lose an opportunity to agitate the public 
mind. 

The names of several prominent citizens of the 
republic were being discussed as candidates for the 
presidency, and, among others, that of Hon. Stephen 
J. Field, who had been elevated from the position of 
chief justice of the Supreme Court of the State of Cali- 
fornia to that of associate justice of the Supreme Court 
of the United States by President Lincoln, in 1862. 
He was distinguished as a member of a celebrated 
family, whose members had exhibited wonderful and 
marvelous abilities in fields of public action, and for 
the extraordinary genius and intellectual abilities which 
he possessed of himself He had become identified 
with California from its earliest history as a State, 
and -had been associated with Judge Terry on the 
Supreme Bench for two years, and succeeded him as 
chief justice. The two were very intimately acquainted, 
and had agreed in many of their decisions, '^ 



1 



TERRY AS A POLITICIAN. 29 1 

Terry had admired Field in former years. In 1851 
he was a member of the assembly from Yuba Cotinty. 
During his practice at the bar he had some difficulty 
with a judge named Turner, who "had him disbarred. 
Turner, it seems, was a very disagreeable person, and, 
on account of his unfitness for the bench and his petu- 
lant nature, articles of impeachment, accompanied with 
the charges, were sent to Field to present to the Leg- 
islature. In presenting them, as was his duty, he 
made a motion that they be received, and that the 
judge be summoned to appear and stand trial upon 
the charges preferred. When he took his seat, an 
erratic and hot-blooded member from Tuolumne 
County, named Moore, took two revolvers from his 
pocket, cocked them, and laid them on his desk. Fol- 
lowing this he made a speech, using the most bitter, 
offensive, and abusive remarks with reference to Field. 
The same day Field wrote a note demanding an apol- 
ogy, but could get no one to deliver it on account of 
the constitutional provision against dueling. At that 
time almost every member of the Legislature, and 
every prominent man in the State, was an aspirant 
for Congress, and they did not want to become ineli- 
gible by acting as jjarties to a duel. 

In the evening he was sitting in the assembly 
chamber alone, and D. C. Brcderick came in. He 
noticed Field wearing a serious countenance, and, as 
he approached him, he said: — 

"Hello, Field, what's the matter? You look as 
though you had lost all your friends." 

"So I have," said Field, and he then related what 
had happened, stating that no one seamed willing to 
bear the challenge to Moore. 



292 LIFE OF DAVID S. TERRY. 

"I'll be your friend," said Broderick, "if you'll do 
as I advise you." 

Field promised, and Broderick took the note to 
Moore, who refused to fight because he expected to 
be a candidate for Congress, but he was willing to 
meet Field "at any time and any place." Broderick 
replied that "a street fight was not just the thing 
among gentlemen, but, if that was the best he could 
do, he should be accommodat; d." He finally con- 
cluded to fight a duel, and named Drury P. Baldwin 
as his friend. 

Field had been in two such scrapes before, and had 
exhibited such a coolness and fearlessness that his 
opponents backed down. Upon inquiry Moore learned 
that Field was a good shot, and also of his previous 
experience, and he concluded to go no further, of 
which Baldwin informed Broderick. 

"Then," said Broderick, " when the assembly meets 
in the morning Field will arise from his seat, refer to 
the language used by Moore, state that he had since 
demanded satisfaction, that Moore had refused to re- 
spond, and thereupon denounce him as a liar and a 
scoundrel." 

"Then Field will get shot in his seat," said Baldwin. 

"In that case," remarked Broderick, "there will be 
others shot, too." 

That night. the friends of Moore told him what had 
occurred, and advised him to prepare an ample apol- 
ogy. They also informed the speaker, and he prom- 
ised to recognize Moore should Field rise to speak 
first. But Broderick had them well in hand. He 
demanded the right and the privilege to dictate the 



TERRY AS A POLITICIAN. 293 

apology, and they had to accept it. When the as- 
sembly was called to order the next morning both 
gentlemen arose in their places, and the speaker rec- 
ognized Moore, who read his apology. 

Terry was present at the time in attendance upon 
the Supreme Court, and, upon learning the facts, for- 
ever after admired both Field and Broderick, and 
they were good friends until later incidents occurred 
which, awakened in him feelings of personal revenge. 

When the duel occurred between Terry and Brod- 
erick, Field, who was then a justice of the Supreme 
Court, was absent from the State, visiting friends in 
the East. In speaking of it on his return he said: — 

*T was absent from the State at the time, or I 
should have exerted all the power I possessed, by 
virtue of my office, to put a stop to the duel. I would 
have held both the combatants to keep the peace 
under bonds of so large an amount as to have made 
them hesitate about taking further steps, and, in the 
meantime, I should have set aU my energies to work 
and called others to my aid to bring about a recon- 
ciliation. I believe I should have adjusted the diffi- 
culty." 

Although not a member of the Stockton convention, 
which became noted for its violent denunciation of 
the railroad corporation and its friends. Judge Terry, 
for the first time in his life, bc^came infused with the 
spirit that surrounded him. Always opposed to the 
monopoly as a political factor, yet never before mani- 
festing any undue enthusiasm, he here uttered senti- 
ments which astonished while they pleased those who 
had known him only as the calm, stubborn, and in- 



294 LIFE OF DAVID S. TERRY. 

flexible judge and dignified advocate at the bar. He 
had never before, in all his experience in California, 
been known to exhibit envy or malice toward any 
man. He had always stood above such passions in 
his estimate of men, and would not stoop to the level 
of a defamer. His was a different nature. He was 
as impetuous and fiery as a flash when the exigencies 
of the occasion demanded, and not even in the pur- 
suit of victory at the bar had he been found guilty of 
scheming or plotting against any person. 

In canvassing among the prominent politicians and 
citizens to ascertain the sentiment in regard to Justice 
Field, his friends met Judge Terry and sought his 
opinion. There has been some controversy as to the 
language used on that occasion, but in the conversa- 
tion he used the following words: "Field is an intel- 
lectual phenomenon. He can give the most plausible 
reasons for a wrong decision of any person I ever 
knew. He was never known to decide a case against 
a corporation. He has always been a corporation 
lawyer and a corporation judge, and as such no man 
can be honest." 

Knowing Justice Field as he did from association, 
and beinor a man of keen observation and close scru- 
tiny in legal matters, no person can question his right 
to entertain the opinion he did, and at this time, hav- 
ing no political favors to ask of his party, and no 
ambition for office to gratify which would call forth 
envious thoughts, his expression can only be consid- 
ered as the honest confession of one who had every 
reason to believe what he said, and the courage to 
say what he believed. 



TERRY AS A POLITICIAN. 295 

It may be inferred that he was professionally en- 
gaged at this time in a case that involved a vast 
amount of money, and that the Circuit Court of the 
United States, over which Field presided, had ren- 
dered a decision adverse to the interests which he 
represented. It would be strange indeed if Judge 
Terry would be more deeply interested and take 
more serious exceptions to an adverse decision in a 
case wherein a client was interested than he would in 
one in which he was personally concerned, and in 
which he was the judge to decide, as was the case in 
declaring the State scrip worthless when he held in 
his hands over $9,000 in the same scrip. No consid- 
eration could have moved him or caused him to utter 
such language in the absence of personal knowledge 
of the character of the man. His deep perception 
had furnished him with the evidence, and he called 
the man's actions in question by the record. He was, 
above all men, careful in the manner in which he used 
his tongue. While he was careful in protecting his 
own honor and good name, he was equally so in de- 
faming that of another. In his investigation of the 
libel suit against the Alta-California newspaper he 
had discovered somethino- which caused him to have 

o 

the case dismissed, and, whatever that may have been, 
he considered it of sufficient importance upon which 
to base a strong suspicion of corruption. The editor 
of that paper was the especial advocate of Justice 
Field's aspirations, and the nominal proprietor being 
the ward of Senator Sharon was sufficient to give 
strong coloring to his language. His emphatic re- 
mark became a matter of public importance, and the 
20 



296 LIFE OF DAVID S. TERRY. 

friends of Justice Field had occasion to remember it 
afterwards. The consequence was that an anti- 
monopoly convention instructed its delegates not only 
unfavorable to Field, but to use every honorable 
effort to defeat his nomination for the presidency. 
This was the last time that Judge Terry ever took 
an active part in politics. 



CHAPTER XXXIX. 

Judge Terry's Character as Estimated by His 
Neighbors — Opposition to the Encroach- 
ments OF Wealth — Views on the Inroads 
OF Political Corruption — Views on Slavery. 

The man who has opinions and is not afraid to ex- 
press them most generally has enemies, but he also 
has self-respect and knows how to maintain it. After 
having presented so much of the life of David S. 
Terry, it is not necessary to impress the reader with 
the fact that, with all his faults, he was a strangely 
great man in all the elements of character that form 
greatness in mind, except moderation in the exercise 
of his passion when confronted with attacks upon his 
integrity or physical manhood. The biographer has 
to contend with many strong elements of character, 
every phase of which presents a novelty, in order to 
establish the pre-eminent one in the nature of the 
subject. His integrity was exceptionally individual. 
He had single elements of character, which alone have 
made other men great, but in him were combined 
features that were peculiarly his own, some of which 
were so prominent that by excessive application they 
became obstacles in his road to success. They were 
diseases that afflicted him and destroyed his hopes 
and aspirations in the field of political activity. The 

(297) 



298 LIFE OF DAVID S. TERRY. 

remedies that he would apply to correct existing evils 
were poison to the health of political leaders who 
operated sol ly on a basis of selfishness and personal 
aggrandizement. He believed that truth was an in- 
herent virtue, and did not require any special plea at 
the bar of public opinion to sustain its position. In 
this peculiar attitude he stood almost alone among the 
gifted minds that moved in the highway of progress. 
He believed in a progression that led upward and not 
downward, in the scale of moral and physical, as well 
as in the intellectual field of action. As this grand ele- 
ment of integrity was his main characteristic, it com- 
bined other virtues, all of which form the strong basis 
of uprightness in the field of human activity. His 
mental armament was so strong, backed by extraor- 
dinary physical force, that his energies in enforcing 
his views were aggressive and not popular with those 
who thought it more politic to conform to the dema- 
gogic conditions of things that had obtained. These 
were the conditions that surrounded him. A Stock- 
ton editor who had known him intimately for over 
twenty years, In speaking of the effort to present to 
the public a biography of the man, said: — 

"Could a true history of Terry be written it would 
prove an interesting book, but owing to peculiarities 
of the man — his secretive nature, his dislike to con- 
verse, even with his closest friends, on matters relating 
to himself — renders the task of the biographer exceed- 
ingly difficult. 

"No man who ever lived was less correctly under- 
stood by his casual acquaintances than was David S. 
Terry, and few men were ever so persistently and un- 



TERRY AS A POLITICIAN. 299 

ceasingly lied about as was he. The lying about and 
misrepresentation of Terry and his character were not 
confined to the press alone, but individuals, who knew 
nothing whatever about him, joined the refrain, and 
put themselves to great pains and trouble to repeat 
untrue and unreasonable tales about him. After the 
murder of Terry at Lathrop, editors and individuals 
in many instances vied with each other in circulating 
false stories about his career, proving to those who 
knew him well, that the maligners were either igno- 
rant of the subject on which they wrote or conversed, 
else were brothers and cousins to the greatest liars who 
ever went unhung." 

" It is not strange, therefore, that men have sug- 
gested to the writer in connection with this work, that, 
without "bristles and claws," David S. Terry would 
be a caricature. Possibly the adjustments that have 
taken place in history by logical transitions consequent 
upon political convulsions and social evolutions in the 
strides to a "higher civilization," left him a lone and 
dreary sentinel upon the outposts of integrity and 
chivalry. He was weighted down with a single ele- 
ment of character which was shocking in its activity, 
and that he was not a courtier in the social world was 
a fault of nature. It is true that he was studded all 
over with bristles. They protruded from every pore, 
and pricked like a lance, when from his nobler pedestal 
he saw the infirmities of the flesh sapping the vitals of 
justice, and the sycophancy that cringed in the pres- 
ence of wealth. While the finite and the infinite 
were rapidly approaching each other in the realms of 
science and art, the world was as rapidly receding in 



300 LIFE OF DAVID S. TERRY. 

its moral standard. He viewed with alarm the grow- 
ing tendency among officers and aspiring politicians 
to barter their honor and manhood for a temporary- 
lease of power, and his comprehensive mind viewed 
vwith precision the corruption which was gradually and 
surely undermining the political and social structure. 
Having no official ambition to gratify, he was bold 
and fearless in denouncing it in its attempts to usurp 
the places of honor. It is not strange, therefore, that 
he was not popular, and constantly at war with public 
opinion as expressed by the organs of political parties. 
In a conversation with the writer on a particular oc- 
casion he said: "I am ashamed of men who, when 
nominated for office, immediately go to San Francisco 
and pawn their honor, manhood, and independence for 
the support of the corporation and the political bosses. 
It is monstrous, and suggests foul corruption and pos- 
sibly a bloody revolution." 

On the occasion of the assembling of the Demo- 
cratic State Convention in San Francisco in 1886, he 
was a delegate at large from San Joaquin County. 
The name of a prominent Democrat, who had held the 
position of State prison director, was being pressed 
for the nomination as a candidate for Governor. 
Terry opposed his aspirations and declared openly 
and vehemently that if he should be nominated he 
would denounce him from every rostrum in the State, 
as a man who had approached the Governor of the 
State as a pardon broker. It was his manner and cus- 
tom to deal openly in denouncing men for their ques- 
tionable acts, and he never ventured upon any such 
field of action unless he was prepared to vindicate 
himself from the records. 



TERRY AS A POLITICIAN. 3OI 

Although imperious by nature, he was the steadfast 
friend of the "common people," as Lincoln classed 
them. He stood firmly and consistently by the labor- 
ing men and the producers, and they were his best 
friends. His sympathies were with struggling human- 
ity, and there is not one act of his life, official or 
private, that would have a tendency, in its practical 
application, to lead to a system of serfdom. When 
slavery went down , and what he considered an inferior 
race was freed from bondage, his ideas of human op- 
pression ceased, but he saw arising in its stead a slavery 
more galling and terrible. When he beheld colossal 
fortunes drifting into the hands of a few individuals, 
and the power that was being employed to resist the 
execution of the laws and arrest the process of justice 
and the enactment of wholesome legislation for the 
protection of the masses, his judgment was that it was 
the presage of oppression, and the liberties of the 
people were in danger. He fought the large corpora- 
tions in their greed with all the ability and power he 
possessed. He was not an alarmist, and would not 
ally himself with the rebellious sentiments that took 
shape among the discontented people who became 
frightened at the approach and menacing attitude of 
corporate power. He realized the situation, but he 
publicly combated the growing tendencies towards 
corruption in high places. 

As an attorney and as a judge, his ideas of justice 
and equity indicated that he had no patience with 
compromises or half-and-half adjustments. What was 
right was right, and any adjustment where the right 
had to yield one iota was not right, but wrong. 



302 LIFE OF DAVID S. TERRY. 

While he did not claim any great superiority, being 
a man of modest demeanor, he was intensely radical 
in the advocacy of whatever his judgment arrived at. 
He was stubborn in will and inflexible in purpose, and 
these well-grounded characteristics caused him to ex- 
ercise his combative powers through life. In his esti- 
mate of official duties he considered that the greater 
the responsibility the greater the crime in abuses, and 
for this reason he was liberal in his denunciation of 
judges and high officials who yielded to the whims of 
gold and brought disgrace Upon their official robes — 
not so^ much that it denoted personal terpitude, as its 
tendency was to wrong the weak and innocent. 

He was neither grasping nor avaricious. There 
are unwholesome waves that occasionally sweep over 
the country and become popular for a time in the ab- 
sence of cool reflection and good judgment. David 
S. Terry stood aloof from them and saw the wrecks 
that must lie in their pathway. Such activities are 
called "progression," and while they build up for a 
time and benefit a few, they leave poverty and distress 
in their wake. He was slow to assimilate with the 
elements in social and industrial enterprises that indi- 
cated a dissatisfaction with established conditions, and 
for this he was called non-progressive. There was 
not one thread of speculation in his system. It was 
all cold, calculating rhetoric with him. His accumu- 
lations of wealth all came from legitimate professional 
sources, and in many instances his abilities brought 
him large fees. His liberality was unbounded when 
worthy objects excited his sympathies, and no man 
had a larger heart or a more generous disposition. 



TERRY AS A POLITICIAN. 303 

Stoical by nature, honest in purpose, truthful in ex- 
pression, and imbued with a stern and implacable will, 
his friendships were few, and, as a natural conse- 
quence, strong. While apparently indifferent to re- 
ligious thought, he was scrupulously exact in all his 
moral and financial obligations. His aim, no matter 
in what field of action, was directed in a line parallel 
with a careful preservation of his good name and 
honorable standing among men, and he would not 
suffer his reputation as such to be assailed. To erect 
this castle was his life-work, and to guard it from suc- 
cessful assault he would have endured crucifixion. It 
was the keystone of his ambition. 

It would be strange indeed if a man possessing 
such virtues as those just mentioned did not possess 
other and more surprising characteristics which awaken 
and produce historical interest. "The good that men 
do is often interred with their bones; the evil lives 
after them." Gauged by public opinion, this was the 
result of Judge Terry's existence. Whether from the 
hot soil of Scotch-Irish ancestry, or the school of a 
radical Southern chivalry, he was wonderfully equipped. 
The energy with which he combated human frauds 
amounted to audacity, and, while he was never ag- 
gressive or provoked a quarrel with anyone, he was 
always prepared for any emergency which might arise 
in resentment. With men he was usually rough and 
uncouth in his address, apparently careless of any 
social civilities, although he preserved a dignified 
degree of self-respect. With women he was tender, 
gallant, and courteous. He was moodish, and, while 
not intentional, he would occasionally offend his best 



304 LIFE OF DAVID S. TERRY. 

friends by his indifferent, brusk, and blunt manner of 
speech, but seldom apologized when convinced of his 
error. He would reason that if he became satisfied 
of the error the person offended should be thankful. 
This was the worst feature of his character. He 
knew that he was feared by others on account of the 
notoriety that had attached to his name, and he meant 
that those who had put the stigma upon him should 
have no occasion to revoke their judgment. He had 
killed Broderick in a duel, and he knew that society 
was as much to blame as he. Had he not demanded 
satisfaction by way of retraction or a duel, he would 
have been branded as a coward, and made to feel the 
pressure of universal contempt. It was the custom 
at the time, and the peculiar condition of society re- 
quired it, as it had of others who never were subjected 
to the disapproval of the public. He had only re- 
sented a public assault upon his character as others had 
done for less serious offenses. The people had all to 
do in fastening upon him the reputation for violence 
which he was compelled to bear, and, while he bore it 
with dignity, he never complained until, after a long 
term of years, during which time he had acted the part 
of an exemplary citizen, and performed eminent service 
to the State, he had been publicly condemned at the 
ballot box — singled out from among his fellows of less 
fame, and made a criminal of in the name of a " mur- 
derer." Then he did complain. 

In leaving California to unite with the Confederate 
forces during the Civil War, .he certainly made a mis- 
take — probably the mistake of his life — but he only 
did what many others had done before him who had 



TERRY AS A POLITICIAN. 305 

held high offices of honor and trust in the State gov- 
ernment, and who have been recognized by the au- 
thorities by being placed in high positions of honor 
and trust. It was more honorable to engage in the 
front with the Confederate forces than to remain in 
the rear of the Union army and harass the troops by 
acts of treachery. Terry was a strict constructionist 
of the Calhoun school, and was opposed to all com- 
promises that "settled nothing and satisfied nobody." 
He was for slavery because he had been associated 
in youth with that peculiar institution in its most 
aggravated form, and no doubt he considered it a 
patriotic duty he owed to the memory of his brave 
ancestors. He had probably thought that the Dec- 
laration of Independence meant something when it 
stated that when the government became corrupt and 
oppressive it was the duty of the citizens to alter or 
abolish it. There may be many excuses offered for 
this unfortunate freak, but at the time he was under 
a cloud which arose from the Broderick duel, and he 
was retreating from the false accusations that were 
being heaped upon him by the public. The act only 
"added fuel to the flame." His sense of justice was 
touched, and his nobler nature was seared in brooding 
over the great injustice that had been done him. 

It was gratifying to him to know that the reputa- 
tion he entertained as a "bad man" did not affect his 
standing as an honest one and an able attorney. He 
was made to realize, however, that twenty years of 
good conduct, incessant labor at the bar, and success 
as an attorney, did not rob him of the reputation he 
bore as the "murderer of Broderick" and the "fire- 



3o6 LIFE OF DAVID S. TERRY. 

eating Southerner," at the mention of whose name 
the timid shrink with fear and trembhng. He was 
still the human volcano within whose bosom the pent- 
up lava lay smouldering, awaiting the eruption which 
could only be awakened by some event in which his 
honor was assailed or his chivalry called in question. 
His Texas relic of barbarism-^the dreaded bowie 
knife — still sleeps in his bosom, as much a part of him 
as the vest he wears. It is his only arm of defense, 
and it must have become rusty in its sheath since the 
blood of Hopkins stained its blade. A pistol in his 
hands was only deadly because of his great nerve and 
utter fearlessness in the presence of death. 

His eminence as an attorney was not circumscribed 
by any narrow limits, and his reputation as such, 
coupled with his fearlessness and physical prowess, 
attracted the attention of the attorneys engaged in 
one of the most celebrated cases at law that is re- 
corded in the history of this or any other State. The 
two combined led to his being retained, and had he 
been able to foresee the ultimate consequences he 
might have avoided taking the step that led to such 
fatal results. 



CHAPTER XL. 

Miss Hill and Wm. Sharon — Their Secret Mar- 
riage — Beginning of the Famous Suit — Judge 
Terry as Counsel — The U. S. Circuit Court 
— The Superior Court — Death of Mrs. Terry 
— Terry Marries Mrs. Sharon. 

Dramatic incidents are usually embellished by a 
woman, and no woman is capable of creating incidents 
of moment, involving the attention of the public, unless 
possessed of some extraordinary abilities or peculiar 
characteristics not in keeoinor with the usual order of 

J. o 

her sex. The Pacific Coast has been the nursery of sur- 
prises in almost every department of life. It was here 
millionaires were first counted in large numbers, vast 
wealth supplied the sinews of war for the rebellion, 
and schemes of marvelous engineering surmounted 
obstacles in crossing the mountains and building the 
transatlantic railway. Society was also shocked with 
her characters, and the enterprise of a'Meiggs and his 
compeers astonished the country. The clash of na- 
tionalities represented in the avenues of trade and 
commerce only irritated the spirit of enterprise with 
its cosmopolitan ideas. Among the contributions 
to society was a Missouri girl whose advent 
was noted in 1870. She came unheralded and un- 
known, and was only one of a thousand who had pre- 

{307) 



3o8 LIFE OF DAVID S. TERRY". 

ceded her. She would probably have remained in 
modest obscurity had she not become infused with a 
spirit of speculation in an endeavor to regain a fool- 
ishly-spent fortune. At that time both sexes were 
wild over mining stocks, but, unfortunately for her, 
she was endowed with a rash and impetuous nature, 
backed by zeal and determination, and her faculties 
for scheming in the channels of the general gamble 
were skarply defined. In her contact with the world 
all her faculties were on edge. She was a woman of 
fair education, strong passions, and infinite resources, 
in the pursuit of whatever fancy took possession of 
her mind, and in her endeavors to obtain wealth in the 
field of speculation she became acquainted with Hon. 
Wm. Sharon, then United States senator from the 
State of Nevada, who was a wealthy banker and con- 
trolled vast mining interests. Their social intimacy 
and business relations, whether honorable or not, led 
to the most startling results. 

The following brief mention of the lady is taken from 
what is said to be a correct history of her former life 
in Missouri, and as its correctness has never been 
challenged, it is here presented without comment: — 

"Sarah Althea Hill was born near the town of Cape 
Girardeau, Missouri, in 1848. She comes of good 
stock, her father being Samuel Hill, a prominent at- 
torney, and her mother Julia Sloan, the daughter of a 
wealthy lumber dealer. She has one brother, Hiram 
Morgan Hill. Her parents died in 1854, leaving the 
two orphans an estate valued at $40,000. Sarah is 
related to some of the best families in the country. 

"She attended school at Danville, Kentucky, and 



THE SHARON DIVORCE CASE. 309 

finally graduated from St. Vincent Convent, Cape 
Girardeau, Missouri. She had a governess in the 
perso" of a Mrs. Barrall, a sister of ex-Congressman 
Hatcher. Her grandfather, Hiram Sloan, was her 
guardian, and appears to have held a slack rein. 

"The young woman developed a spirited temper, 
and soon after reaching legal age made her money fly. 
She grew up into womanhood in much her own way, 
and was noted for her beauty and temper. She 
was a schemer above all things, and this made her un- 
popular among her girl companions. It was said of 
her, too, that, though she was a spendthrift, she wor- 
shiped money, and gave her attention mostly to those 
who possessed it. She is remembered by her friends 
here as something of a fl,irt, and at one time is said to 
have had three engagements to marry on her hands. 
One of the parties is now a prominent politician in 
southeastern Missouri, and another resides in St. 
Louis. 

"Her conquests were numerous during the time she 
held sway. She was fast, but her name was never 
tarnished with scandal. In love affairs Sarah was 
tyrannical and more than one of her lovers had to 
suffer her iron rule and eccentric whims. 

"It is said that she really loved one young fellow, 
named Will Shaw. They were engaged to be mar- 
ried, but as the result of a tiff the young man deter- 
mined to break the engagement. Sarah heard of this 
and when next he called she was so charming that he 
pressed his suit with more ardor than ever, when she 
had her revenge by snubbing him. 

"The story goes that she really wanted and expected 



3lO LIFE OF DAVID S. TERRY. 

him to return, but he did not, and in September, 1870, 
disgusted and broken-hearted, with only the shadow 
of her fortune, she started for California. 

"A young uncle named William Sloan accompanied 
her to the coast. He was wealthy and took his niece 
to his mother's home. Sarah and the old lady did 
not live in harmony, and Sloan gave the girl a fine 
suite of rooms in a hotel. It is there that she met 
Senator Sharon." 

Ten years after her advent into California, she 
claimed to have been married to William Sharon by 
civil contract, a copy of which she had in her pos- 
session, dated August 25, 1880. This contract was 
withheld from the public under pledge of secrecy for 
two years, and during that time, while absent from 
San Francisco attending to his official duties at Wash- 
ington City or on business in Nevada, he had written 
her letters, some of which purported to have been 
addressed to his "dear wife." After the expiration 
of the time indicated, the existence of the contract 
was made public, and on October 3, 1883, Sharon, 
denying having entered into any such contract, brought 
an action in the United States Circuit Court to de- 
clare the contract fraudulent and a forgery, together 
with the alleged "dear wife" letters. While these 
proceedings were in progress in the Circuit Court, 
Sarah Althea, in the name of Mrs. Sharon, brought 
suit for divorce, in January, 1884, ^^ the Superior 
Court of San Francisco, alleging adultery and deser- 
:ion. The former allegation was afterwards with- 
drawn, and the case immediately attracted universal 
ittention from the fact that Sharon was a man of 



THE SHARON DIVORCE CASE. 3 1 I 

prominence and possessed of great wealth, being more 
than ten times a millionaire. 

David S. Terry was called as counsel in the case 
soon after it was instituted in the Superior Court, and 
was assigned the position of special counsel and pro- 
tector to the plaintiff, as there were intimations based 
upon well-grounded suspicions that she was in danger 
of being kidnapped or "spirited" away by intrigue and 
through the use of money, which was being lavishly 
expended to defeat her cause. Terry's position as 
adviser and protector in connection with this report 
gave strong emphasis to the prevailing sentiment in 
the public mind that her cause was a just one. At all 
events, his presence with her, enjoying the reputation 
which he did, was sufficient protection. 

After Judge Terry had been retained in this posi- 
tion, a prominent attorney of Los Angeles was ap- 
proached by the opposite side and offered a large fee 
if he would become an attorney in the case. This 
gentleman, who now holds an honorable position in 
the State government, possessed a reputation for fear- 
lessness equal to that of Judge Terry, and was a man 
of acknowledged integrity and eminent legal abilities. 
The offer was a flattering one, but when he was made 
aware of the part he would be required to perform, 
he promptly declined having anything to do with it. 
The fact that they feared Judge Terry and that he 
stood in the way of accomplishing their designs, sug- 
gested his removal in some manner. This gentleman, 
like Judge Terry, had a reputation for rashness thrust 
upon him, and, like Terry, his sense of honor and in- 
tegrity was too great to suffer him to accept a position 

21 



312 LIFE OF DAVID S. TERRY. 

at any price where questionable proceedings were de- 
manded or expected. Sharon did not have enough 
money to buy him. True to his honor as an attorney 
and gentleman, this incident was never made public 
until after Terry's death. 

In his practice, Judge Terry had always been scru- 
pulously careful in engaging in cases of equity. He 
would have nothing to do with cases of questionable 
honor on the part of litigants, and this was the reputa- 
tion he bore wherever he was known. In becoming the 
chief counselor of Mrs. Sharon in her suit for divorce, 
he believed her cause was just, and his connection with 
the case as such had the effect of more firmly con- 
vincing the people that she was the subject of perse- 
cution, and their sympathies were with her. When 
he first became associated with the other attorneys in 
the case, he found she had brought an action for dam- 
ages in the sum of $50,000 against a newspaper for 
certain publications which stigmatized the alleged 
marriage contract and letters as forgeries, and he had 
the suit promptly dismissed. He knew these docu- 
ments would have to be submitted to expert tests be- 
fore the judicial tribunals where proceedings were 
being had, and that was sufficient. When the demand 
was made by the Circuit Court, he advised their sur- 
render, but she stubbornly refused to produce them, 
and was sentenced to imprisonment in the county jail 
for twenty-four hours for contempt. 

Judge Terry denied that the Federal courts had 
jurisdiction, and made a motion for a stay of proceed- 
ings and to prevent Senator Sharon from bringing 
and prosecuting a suit in the Circuit Court. Judge. 



THE SHARON DIVORCE CASE. 313 

Sawyer denied the motion. The documents were now 
in the hands of Judge Terry, and in obedience to the 
mandate of the court, he submitted the alleged con- 
tract and "dear wife" letters to a test as to their 
genuineness before Commissioner Houghton. These 
proceedings proved nothing substantial beyond the 
fact that the signature to the contract was genuine; 
but the court decided that they were fraudulent and 
forgeries and ordered them surrendered for cancella- 
tion and to be destroyed. Sarah Althea refused to 
obey the order of the court, and, to avoid process, 
absented herself and remained in seclusion at Stock- 
tori, where Terry had sent her, for several days. 

In the meantime, and before the Circuit Court of 
the United States had taken final action, the suit for 
divorce was being hotly contested in the Superior 
Court of San Francisco, before Judge Sullivan. There 
was as brilliant an array of legal talent as money 
could procure on the part of the defense, while those; 
on the part of the plaintiff were bold and aggressive. 
In this court Judge Terry did not appear, but those 
who did relied upon a verdict in their favor for com- 
pensation, and they prosecuted it with an earnestness, 
stubbornness, and vigor never before witnessed in 
any court on the Pacific Coast. The trial of the 
case occupied the attention of the Superior Court for 
eighty-three days, and resulted in a decision in her 
favor, and a decree of divorce being granted. It es- 
tablished the validity of the marriage contract, grant- 
ing her one-half of the community property, awarded 
her $2,500 per month alimony and $55,000 for coun- 
sel fees. 



314 LIFE OF DAVID S. TERRY. 

A motion for a new trial was denied by the Superior 
Court, and an appeal was taken to the Supreme Court 
from the judgment, and also from the order awarding 
alimony and counsel fees. In its decision in the case 
the Supreme Court reduced the amount of alimony to 
$500 and denied the award for counsel fees entirely. 
The opinion was written by Justice McKinstry, and 
concurred in by Searles, Temple, and Paterson. 
It recognized the validity of the contract and asserted 
that marriage by contract, whether secret or public, 
was valid in this State, The two appeals were both 
considered in this decision. This action of the Su- 
preme Court was had in January 1888. That year the 
personnel of the court was changed, and another appeal 
was taken on the findings on evidence, relating more 
particularly to the genuineness of the declaration of mar- 
riage, and the court reviewed the previous decision, 
and reversed its own judgment. In other words, it 
declared that the facts presented in evidence before 
the Superior, or trial court, did not justify the findings 
and decree, and a new trial was ordered. Justice 
Works delivered the opinion of the court. 

Judge Terry was present when the decision was 
rendered, and he walked out of the court room the 
most astonished attorney and ex-judge imaginable. 
It was a freak in jurisprudence that had but one mean- 
ing. When he went to his rooms at the hotel he met 
an old-time friend in the corridors and said: — 

"Well, S , they have salted me." 

"What do you mean, judge?" inquired S . 

"The Supreme Court has reversed its own decision 
in the Sharon case, and made my wife out a strum- 
pet. 



THE SHARON DIVORCE CASE. 315 

"What are you going to do about it, judge?" asked 



S . 

"What can a person do in the fcice of Sharon's mil- 
Hons? It is infamous! What is the world coming to, 
anyway? Here, only a few weeks ago, Senators 
Stanford and Stewart voted to confirm the nomination 
of Lamabr as an associate justice of the Supreme 
Court of the United States, when they must have 
known, as I know, that he is totally incompetent for 
the position. The corporations and capitalist; are 
centralizing their power in all departments of the gov- 
ernment, both Federal and State. Justice has a dark 
outlook." 

Judge Terry made a motion for a rehearing on the 
ground that the Supreme Court could not disturb its 
own decisions after having been once rendered and after 
having become the law of a case. The arguments 
which he prepared in support of this motion will be 
referred to at the proper time. 

In the meantime, the United States Circuit Court 
rendered a decision on the question of the validity of 
the marriage contract, declaring it a forgery and de- 
nouncing it in the most vigorous language. The de- 
cree was entered January 15, 1886, ordering the sur- 
render of the document for cancellation, and granting 
a perpetual injunction against the respondent. The 
decree also enjoined Sarah Althea, her agents and at- 
torneys, from alleging the genuineness of the docu- 
ment in evidence, or otherwise, to support any claim 
or set up any right or interest of any kind whatever. 

The question of jurisdiction being denied, the action 
of the United States Court was held in abeyance, but 



3l6 LIFE OF DAVID S. TERRY. 

it had a strong bearing upon the action of the State 
Courts, and the case was permitted to rest until the 
presiding justice of the Ninth Circuit of the United 
States Court would sit and determine the question of 
jurisdiction, and put the decree into execution. 

Judge Terry's first wife died during the time he 
was engaged in this celebrated legal controversy. It 
was a severe blow to him, for she had been both wife, 
counselor, and friend. She understood his disposition 
as no other person could, and she knew how to adminis- 
ter to his peculiar nature. It has been observed by 
those most intimate with them, that no home could be 
more pleasant and no family more happy during her 
lifetime. Although overbearing and blunt in his dis- 
position in contact with the world, he was a kind hus- 
band and father. * The bereavement left a void in his 
heart, for no matter what the storms without in elbow- 
ing his way through the world, he loved and cherished 
the comfort and rest of domestic life. In his relation 
with his client in this case he had become attached to 
her. He firmly believed her cause was just, and that 
she was villainously persecuted with gold. With his 
cool, calm, and judicial mind it would be strange, in- 
deed, if he did not see more deeply and clearly than 
those who were but superficial observers. He recog- 
nized the fact that she was a woman of talent and pos- 
sessed a strong will and unyielding determination. 
Her rare qualities impressed him so deeply that he was 
blind to the subtle influences she employed in order to 
gain his confidence. She needed a companion and 
friend to stand by her in the prosecution of her 
schemes. He was charmed by her audacity and her 



THE SHARON DIVORCE CASE. 317 

native brilliancy, and remarked to a friend who was 
chiding him for falling in love with his client, that 
she was the "smartest woman he ever saw." Whether 
true or false, she had led him to believe she was a 
persecuted woman, and that Sharon's millions were 
being employed to defame her character and destroy 
her reputation. She had studied his nature and se- 
cured his sympathies and love — for Terry adored her, 
and on the seventh day of January, 1886, they were 
married at the Catholic parsonage in Stockton. He 
married her as the legally divorced wife of Senator 
William Sharon, and such she was, as the only court of 
competent jurisdiction in such matters had so decreed, 
and if based upon false premises, even the Supreme 
Court had failed to determine the fact. Its later de- 
cision could only be looked upon with grave suspicion. 

At this time Judge Terry occupied a position at the 
head of the profession in the State, and had offices in 
San Francisco, Stockton, and Fresno. His home 
office was at Stockton, but for several years his prac- 
tice was so extensive that he resided almost constantly 
at San Francisco. His financial success had induced 
him to invest largely in real estate in Fresno County, 
and he became interested in a mine in Arizona. All 
of this property was more or less encumbered, but 
with the prospects before him, he was considered in 
comfortable circumstances. 

After his marriage with Sarah Althea his social re- 
lations were seriously disturbed. The proceedings in 
court had developed such a state of facts in connection 
with her relations with Sharon, many of which were 
either acknowledged or not controverted, that a noto- 



3l8 LIFE OF DAVID S. TERRY. 

riety attached to her that presented a coloring of sus- 
picion people were not willing to condone, although 
Judge Terry had accepted them as legitimate in 
making her his wife. It was not because they had 
lost confidence in him as an honorable man or as one 
who had sufficient knowledge of her chastity, but the 
social avenues that had been open to his former wife 
were closed to her, and his manly spirit was stung to 
the quick. Having given her the dignity of his name, 
he was not the man to desert her or to allow anyone 
to invade his home with other than the highest respect 
and consideration for his wife. If the verdict of a court 
around which suspicion rested had become the verdict 
of the people in respect to her honor and chastity, he 
could not help it. His knowledge of the affair, and 
his knowledge of people and their frailties in the pres- 
ence of that power to which so many kneel, was alto- 
gether different. But this he realized, that the strong 
citadel which he had erected as a monument to his 
unflinching integrity was not a castle to protect him 
from the enemies of his domestic happiness. His 
proud fortress was being dismantled by a friendly 
enemy. Personally he would not have chafed under 
the pressure of such conditions, for as a recluse he 
would have been contented; but another's happiness 
and reputation was involved, and that one he had 
chosen as his wife. 

Like some' majestic oak, whose huge trunk and 
rugged arms have defied the winds, the storms, and 
the fury of the hurricane for centuries, the twining 
tendrils of the deadly ivy, with loving embrace, were 
quietly and insidiously undermining his strength and 



THE SttARON DIVORCE CASE. 319 

destroying his vital energies. Age had left no visible 
marks of its displeasure upon him, no warning of 
approaching decay; his majestic form was still erect, 
and he stood among his fellows a splendid specimen 
of physical manhood, with intellectual powers full 
fledged; but the hour of greatest trial was approach- 
ing slowly but surely, and he was in the breach. 
Samson had his Delilah. 



CHAPTER XLI. 

The Final Decision in the Sharon vs. Sharon 
Case — Memorable Scene in Court — Judge 
Terry Loses His Temper — Arrested and Im- 
prisoned FOR Contempt — Appeal for Release 
Denied. 

The death of Senator Sharon, which occurred in 
1885, made it necessary for his attorneys to substitute 
his legal representatives as parties to the actions not 
yet disposed of by the Circuit Court of the United 
States. Accordingly, to be properly joined, Francis 
G, Newlands, son-in-law of Sharon, and executor of 
the estate, was substituted as defendant in suit against 
Sharon, and Frederick W. Sharon as plaintiff in a 
suit entitled "A bill of revivor in equity " against Sarah 
Althea Hill, and "F. G. Newlands vs. Sarah Althea 
Terry and David S, I'erry, in a suit in equity in the 
nature of a bill of revivor and supplement and to 
carry decree into execution." Demurrers were entered 
in all three cases by Judge Terry. 

Justice Stephen J. Field, of the United States 
Supreme Court, was present and presided on the third 
day of September, 1888, at which time the cases were 
to be heard' and finally disposed of A few moments 
before the court opened the Terrys, as defendants, 
entered the court room and took their seats within the 
( 320 ) 



THE SHARON DIVORCE CASE. $21 

bar at a table near the clerk's desk, and in front of 
the judges. There was a crowd of eminent attorneys 
and distinguished people present, as though they had 
been invited to witness some extraordinary proceeding. 
The case had become so notorious, and had occupied 
the attention of the courts for so long a time, that no 
doubt there was a curiosity to witness the end, which 
now seemed imminent. From the bench on which sat 
Justice Field and Judges Sawyer and Hoffman, to the 
door, guarded by a deputy marshal, the room was 
packed. About the tables sat the attorneys for each 
contestant. Judge Terry and his wife and their attor- 
ney, ex-Judge Stanley, sat together. To all appear- 
ances Mrs. Terry was the most composed and coolest 
person present. Occupying a seat near by her sat 
Marshal Franks. Judge Field commenced reading 
the decision, and while doing so Judge Hoffman sat 
with his legs crossed, an apparently disinterested 
spectator. Judge Sawyer sat with his eyes half closed, 
and his face was as e.vpressionless as the desk before 
him. It was understood that the decision was only to 
revive and put in practical force the former decision 
of the Circuit Court, and against Mrs. Terry, but for 
fully ten minutes she sat and listened without any ex- 
citement or apparent interest to the low-toned drawl 
of Justice Field. In rendering judgment he said: — 
"The demurrers in both cases are overruled; that 
in the first case, the original case of William Sharon 
against Sarah Althea Hill, now Sarah Althea Terry, 
the proceedings and final decree therein stand revived 
in the name of Frederick W. Sharon, as executor, 
and against Sarah Althea Terry and David S. Terry, 



322 LIFE OF DAVID S. TERRV. 

her husband, the said executor being substituted as 
plaintiff in the place of William Sharon, deceased, and 
the said David S. Terry being joined as defendant 
with his wife, so as to give to the said plaintiff, exe- 
cutor as aforesaid, the full benefits, rights and protec- 
tion of said final decree, and full power to enforce the 
same against the said defendants at all times and at 
all places and in all particulars." 

Justice Field, in his opinion, said : "If the contract 
was genuine and valid it placed her in a position to 
claim her rights to a portion of the community prop* 
erty. It would also give her an inchoate right to 
dower in the real property, which he then possessed 
in the District of Columbia, amounting in value to 
$300,000. Such right in the real property of Sharon 
in the District of Columbia would greatly exceed in 
value the amount required to give jurisdiction to this 
court." 

After having disposed of the objections to the juris- 
diction of the Circuit Cour^ in the original suit, the 
court proceeded to consider how far the judgment 
thereon was affected by the decision of the State 
Court, and held that " the jurisdiction of the District 
Court of the United States and the right of the 
plaintiff to prosecute his suit in that court having 
attached, that right could not be arrested or taken 
away by any proceedings in another court," 

In closing Justice Field held that the failure to pre- 
sent the decree of the Circuit Court to the State 
Courts did not lessen its efficacy, and would not pre- 
vent it, when revived, from being hereafter presented 
to them, and does not impair in any respect the power 
of the Federal Court to enforce its execution. 



THE SHARON DIVORCE CASE. 323 

After having stated the case fully he approached 
that part of the decision which referred to the marriage 
contract, in the following language: — 

"The original decree is not self-executing in all its 
parts; it may be questioned whether any steps could 
be taken for its enforcement until it was revived. But 
if this were otherwise, the surrender for cancellation 
of the alleged marriage contract as ordered, requires 
affirmative action on the part of the defendant. The 
relief granted is not complete until such surrender is 
made. When the decree pronounced the instrument 
a forgery, not only had the plaintiff the right that it 
should be thus put out of the way of being used in 
the future to his harassment and the embarrassment of 
his estate, but public justice requires that it should be 
formally canceled, that it might constantly bear on its 
face the evidence of its bad character whenever and 
wherever presented or appealed to." 

At this juncture Mrs. Terry arose hurriedly and 
precipitated the most remarkable scene that was ever 
witnessed in a court room. She had lost none of her 
self-possession, as she pointed toward Justice Field 
before speaking, and in a voice not at all tragic or ex- 
cited, but distinct and deliberate, said : — 

"Judge Field, are you going to take it upon your- 
self to order me to give up that contract ? " 

At this disturbance of the court the crowd became 
interested and pressed forward. For an instant Field 
was disconcerted at the audacity of the woman, but 
in a moment he spoke in the same tone in which he 
had been reading, and said, "Sit down, madam." 

She was about to speak again when she was inter- 



324 LIFE OF DAVID S. TERRY. 

rupted by Judge Terry, who asked her to sit down, 
but she was irrepressible, and in a tone somewhat 
louder, and without heeding her husband, she said : — 

"Judge Field, we hear you are bought. We want 
to know if it is true, and how much you have been 
paid by the Sharon people?" 

The judge spoke very quietly, and said, " Marshal, 
pui that woman out." 

Terry sat between his wife and the marshal, and as 
the latter stepped forward to obey the order and was 
about to lay his hands upon Mrs. Terry, who was still 
standing, she said in still louder voice : — 

"It appears that no one can get justice in this court 
without he has a sack." 

Again the order came from the court to take her out, 
and as the marshal caught her by the arm, Judge 
Terry arose and said, "Don't touch her. She is my 
wife, and I will take her out of the court room. " 

Marshal Franks, instead of allowing Terry to take 
her from the room, caught him by the lapels of the 
coat and thrust him against the chair, saying, " I 
know my duty, sir." Terry was on his feet in an 
instant and he drew his fist and struck the marshal a 
blow in the mouth which struck his teeth, inflicting a 
wound on his own hand. Immediately a dozen men 
sprang on Terry and bore him to the floor. With the 
strength and art of a trained wrestler he squirmed and 
fought in his rage, and the officers had no easy task to 
hold him. Mrs. Terry was struggling with two or 
three officers, who finally took her out and placed her 
in a room adjoining the marshal's office. Before 
leaving the room she handed a man her satchel, saying 
that there was money in it. 



THE SHARON DIVORCE CASE. 325 

Judge Terry soon gained command of his temper 
and said to the officers, " Let me go. I only want to 
accompany my wife, and I will go quietly." He was 
released and the officers fell back. Without a word he 
walked to the door and half the people in the court 
room followed him, and Justice Field, after taking a 
drink of water, continued his reading. His companions 
on the bench did not change their positions. 

As Judge Terry crossed the corridor to the marshal's 
office he found the door barred by an officer. This 
enraged him, and he took from his vest his Texas 
knife and demanded that he be allowed to go to his 
wife. One of the officers drew a pistol and said, 
" Don't use that or I'll shoot." Terry grasped his 
knife firmly and ordered them to stand back, as he was 
going to his wife and no man could stop him. 

At this Marshal Franks spoke and said, "If he will 
give up his knife he may go." Terry said, " Certainly," 
and handed his knife to a deputy marshal, and passed 
into the room where his wife was. 

The man who received the reticule from Mrs. Terry 
did not care to give it up, but it was taken from him. 
In it was a fortjj^:orLg_caliber revolver. One chamber 
was empty, the trigger resting there. This weapon, 
with Judge Terry's toothpick, was put in the safe. 

During the fight in the corridor and office Justice 
Field continued reading the decision, and then the 
court adjourned, the few spectators to talk over the 
exciting scene, and the judges to take counsel how best 
to punish the Terrys for their contempt of court. 

The above was related to the writer by a gentleman 
who was an observer of the transaction from first to 



326 LIFE OF DAVID S. TERRY. 

last, and who was present for tlje express purpose of 
observing how the Terrys would take the decision 
which he knew in all reason would be given, but was 
totally unprepared for such a scene as transpired. 
While he believes he was as cool as a majority of those 
[resent, he would not say that he would have been 
willing to testify that the moon was not made of green 
cheese at the particular moment, as the whole trans- 
action did not occupy over five minutes from the time 
Mrs. Terry first interrupted the court until Terry was 
with her in the room near the marshal's office. The 
excitement was intense, so intense, indeed, that one of 
the reporters of a San Francisco newspaper was on the 
street willing to swear that Mrs. Terry fired a shot. 
Of course that would have been perjury, but he would 
have sworn to it all the same. Five minutes after the 
affair the general rumor on the street was that Field 
had been killed by Mrs. Terry, and that Terry had 
shot the marshal. No one was in a condition to know 
exactly what had occurred. 

After he had been admitted to the room in which his 
wife had been placed, an order came from the court 
instructing the marshal to hold them both as prisoners 
until further orders, and after the judges had con- 
sulted, the following was, placed in the hands of the 
marshal for immediate execution: — 

"In the Circuit Court of the United States of Amer- 
ica for the Northern District of California. 

*Tn the matter of contempt of David S. Terry. In 
open court. 

"Whereas, on this third day of September, 1888, in 
open court and in the presence of the judges thereof, 



THE SHARON DIVORCE CASE. 327 

to wit: Hon. Stephen J. Field, circuit judge, presid- 
ing, Hon. Lorenzo Sawyer, circuit judge, and Hon. 
George M. Sabin, district judge, during the session of 
said court, and while said court was engaged in its 
regular business, hearing and determining cases pend- 
ing before it, one Sarah Althea Terry was guilty of 
misdemeanor in the prt sence and hearing of said 
court; and, whereas, said court thereupon duly and 
lawfully ordertd the United States marshal, J. C. 
Franks, who was then present, to remove the said 
Sarah Althea Terry from the court room; and whereas, 
the said United States marshal then and there at- 
tempted to enforce said order, and then and there 
was resist! d by one David S. Terry, an attorney of 
this court, who, while the said marshal was attempting 
to execute said orders in the presence of the co.;rt, 
assaulted the said United States marshal and then 
and there beat the said marshal, and then and 
there wrongfully and unlawfully assaulted the said 
marshal with a deadly weapon, with intent to 
obstruct the administration of justice and to resist such 
United States marshal and the execution of said 
order, and, whereas, the said David S. Terry was 
guilty of a contempt of this court by misbehavior in 
its presence and by a forcible resistance in the presence 
of the court to a lawful order thereof in the manner 
aforesaid: — 

"Now, therefore, be it ordered and adjudged by this 
court, that the said David S. Terry, by reason of said 
acts, was and is guilty of contempt of the authority of 
this court, committed in its presence on this third day of 
Septemb-r, 1888. And it is further ordered that said 
David S. Terry be punished for said contempt by im- 
prisonment for the term of six months. And it is 
further ordered that this judgment be executed by im- 
prisonment of the said David S. Terry in the county 
jail of the County of Alameda, State of California, 



^2^ LIFE OF DAVID S. TF.kRV. 

until the further order of this court, but not to exceed 
said term of six months. And it is further ordered 
that a certified copy of this order under the seal of this 
court be process and warrant for the execution of 
this order." 

Without a break in his tone, the justice took up the 
order in the case of Sarah Althea Terry. It was as 
follows: — 

"Whereas, on the third day of September, 1888, in 
open court, and in the presence of the judges thereof, 
to wit: Hon. Stephen J. Field, circuit justice, presid- 
ing, Hon. Lorenzo Sawyer, circuit judge, and Hon. 
George M. Sabin, district judge, during the session 
of said court, and while said court was engaged in its 
regular business, hearing and determining causes pend- 
ing before it, said Sarah Althea Terry interrupted the 
proceedings of said court by loud and boisterous 
language, and was thereupon ordered by said court to 
be silent and to take her .seat, and refused to do so, 
but continued to use boisterous and insulting language, 
and asked the presiding justice 'how much he was 
paid for his opinion;* and then and there used toward 
the court in its presence other contemptuous and 
scandalous language; 

"Whereas, the said court did then and there make 
an order that the said United States marshal remove 
the said Sarah Althea Terry from the court room, 
which order the said marshal did then and there 
attempt to execute, and which said order made in her 
presence and hearing the said Sarah Althea Terry 
resisted in the presence of the court." 

It was then ordered that Sarah Althea Terry be 
punished for said contempt by imprisonment in Ala- 
meda County Jail for thirty days. 



The SHARON DIVORCE CASE. 3i»9 

For a man of Terry's disposition and sense of 
justice, this was probably th^ strongest appeal to his 
irritable temper that was ever made. His chivalry 
was touched and also his honor when his word was 
questioned by the marshal. Those who know him 
best are ready to testify that he would imperil his life 
in defense of a friend, and how much more that of the 
one he had made his wife ? During his long practice 
at the bar he had always sustained a high reputation 
for respect and courtesy toward courts of justice, and 
in their presence exhibited a dignity worthy of emu- 
lation, but here was a case which, from the peculiar 
nature of the surroundinQS, demanded the exercise of 
a temper which he did not possess. When he gave 
his word that he would remove his wife from the 
court room he intended to do so, which would have 
prevented the disgraceful scene which followed The 
marshal was under orders to perform a duty, and 
while he would have avoided a conflict with Terry 
had he known him better, he must not be censured for 
carrying out the orders of the court. It was not the 
true and dignified character of the man that confronted 
him at that exciting moment; it was his notoriety for« 
rashness which was always aggravated by the timid 
and prejudiced. The climax was hastened by the 
marshal and by Mrs. Terry in her persistent assault 
upon the honor of the court and judge. Terry was 
always equal to the necessities of a climax when he 
was in the breach. 

In obedience to the judgment and order of the 
court. Judge and Mrs. Terry were taken to Oakland 
and placed in the Alameda County Jail without re- 



330 LiFr. OF DAVID s. tf:rry. 

sistance. Terry was well aware of the fact that con- 
tempt had been committed, but he said that the scene 
which had transpired was but a faint expression of the 
contempt which he entertained for the court. While 
in jail he was visited by friends from all parts of the 
State, who knew him to be a cool and truthful man, 
and one too brave and honorable to seek cowardly 
refuge behind a falsehood. Imprisonment was noth- 
ing to him in comparison with the vindictiveness ex- 
hibited in the six months' sentence. He knew it was 
an outrage and unprecedented, but he knew his man. 
He remembered a time long ago, when associated with 
Judge Field on the Supreme Bench. The remi- 
niscence here given is a bit of history published at the 
time Terry was in jail, and is abundantly vouched for. 
The incident occurred in 1858, when Terry was chief 
justice and Field and Baldwin were associate justices 
of the Supreme Court. 

Field was a New Yorker, and as he mixed a great 
deal with Southern gentlemen, who did not hold the 
valor of the North in high esteem, he was always 
particularly anxious to pass for a man of courage. 
Like all men who are not quite certain of their cour- 
age, he was at some pains to let the world know that 
he was an extra brave man. One of his ways of show- 
ing this was by constantly associating with men who 
had special reputation for bravery, and among them 
was Judge Terry, whose society he cultivated assid- 
uously and on whom he constantly leaned for advice 
in both legal and personal affairs. 

One day there was a fearful scene in the Supreme 
Court. The reporter of the court was a man named 



THE SETARON DIVORCE CASE. 33 1 

Lee, who had come to this State from Illinois, and 
was regarded as a man who, while brave and reckless, 
was otherwise dignified and gentlemanly. Charles 
Fairfax was clerk of the Supreme Court, and a bill 
was pending in the Legislature at the time to create 
the office of Supreme Court reporter, to which 
position Lee, who was then acting as such, aspired. 
Some discussion arose in regard to the bill and Lee 
made some remark which irritated Fairfax and he 
slapped Lee in the face. Fairfax was unarmed, but 
Lee seized his sword cane and, drawing the slender 
blade, plunged it into Fairfax's body, and then deliber- 
ately twisted it around. A bystander handed Fairfax a 
pistol. Fairfax took the pistol and pointed it at Lee. 
He was about to shoot, but through the pain of his 
wound and the natural desire for vengeance there came 
his great charity and nobility of soul to stay his hand, 
and, lowering the pistol, he said: "Lee, you have 
wounded me to death in a cowardly way, and I ought 
to take your life. But your wife and babies have done 
me no wrong, and I spare you for their sake." 

Then he sank to the floor with a groan and became 
insensible. The bystanders picked him up, placed 
him on a bench instead of a stretcher, and bore him 
to his home. It was late in the afternoon, and there 
at the gate of the cottage stood Mrs. Fairfax, waiting 
her husband's return. It was Judge Field who broke 
the news of the crime to her, and it was Jiidge Field 
who wrung, her hand in sympathy and vowed that the 
cowardly assassin should be brought to justice. 

Then Judge Field went out among the people of 
Sacramento and roused them against the cowardly 



^2)2 LIFE OF DAVID S, TERRY. 

crime of Lee. He said that Lee was a villain who 
should be hanged, and more than that he was a 
scoundrel who would have been put in jail long before 
but for Field's intervention. All this came to Lee's 
ears and he determined to stop Judge Field's mouth. 
So he wrote Field a letter saying that unless he re- 
tracted all that he had said about him he would whip 
him on sight. Field was very much agitated at such 
a threat from such a man, and went to his friend 
Baldwin for advice, as Judge Terry, on whom he re- 
lied, was out of town. Baldwin said, "That fellow 
Lee will assault you and perhaps kill you if you don't 
retract, and perhaps you had better satisfy him." This 
must have been in consonance with Field's wishes, for 
he at once sat down and wrote an ample retraction and 
sent it to Lee. Lee having got the measure of his 
man, proceeded to rub it in by causing an account of 
the circumstance to be printed in a public newspaper 
and with it the Field letter of retraction. It was 
published in a newspaper called the Aoe^ since re- 
christened the Bee, and naturally Field's backdown 
became the talk of the town. The day it was pub- 
lished Terry came back to town and he saw Mrs. 
Fairfax and heard from her what Field had promised 
to do. Then he went to his chambers, and the first 
thing he saw was the Age containing the copy of 
Field's retraction. Soon Field entered, and handing 
him the paper Terry said, "Judge, is this true.'*" 
Field seized the paper and read the item. Then his 
face turned livid with shame and rage, and he dashed 
the paper at Baldwin, who was there, crying out : 
"See what you ha\e made me do, Baldwin; see what 



THE SHARON DIVORCE CASE. ;^T,;^ 

you have made me do. If Terry had been here he 
would not have let me do that. Terry would not have 
let me be disgraced. It was all your fault, Baldwin. 
You said worse things about Lee than I did." 

Field was very much put out at the slur on his 
courage, and tried to get a modification of the story 
in the ^^e, but the editor of that paper reiterated the 
story of Field's backdown, and some time afterwards 
Lee published another card to Field, in which he said, 
"I made you retract once ; do you want me to force 
^ou to make another retraction?" 



CHAPTER XLII. 

Judge Terry in Jail- — Loses Control of His Tem- 
per AND Becomes a Violent Declaimer — His 
Version of the Court Scene — -Threats of 
Assault in Retaliation — Petition for Release 
— Petition Denied. 

For a second time David S. Terry became a pris- 
oner on account of his irritable and uncontrollable 
temper. The following day he was visited by a re- 
porter of the Stockton Mail, whose editor was his 
particular friend and admirer. As the various reports 
of the disturb;ince in the court room were so conflict- 
ing that no reliance could be placed upon any one of 
them, and even the details set forth in the order 
of the court were not vouched for by any respect- 
able eyewitness, the transactions, as related by 
Judge Terry to this reporter, are probably as nearly 
correct as any could be under the circumstances. 
Following is his statement, and as he was probably as 
conscious of the proceedings as any man in the court 
room at the time, his version is entitled to some 
weight: — 

" I made no resistance to any order, and the record 
is a lie. I was sitting down when my wife interrupted 
Judge Field, and when he said, 'Marshal, remove 
that woman from the court room,' I rose to take her 

(334) 



THE SHARON DIVORCE CASE. 335 

out. As the marshal came towards me I said, 
'Don't touch her. I will take her out of the court 
room.' Marshal Franks yelled out, 'I know my busi- 
ness,' and grabbing me by the lapels of the coat tried 
to force me back into a chair. Two others seized me 
by the shoulders and forced me down. Again I 
said, ' I will take her out.' The men who were bending 
me back hurt me, and I wrenched myself free and 
struck at Franks, the blow hitting him in the mouth. 
I struck at him because he assaulted me without 
any right or order of court. By that time they had 
dragged Mrs. Terry out of the court room. Then 
their duty ended. They had obeyed the order bru- 
tally. The order was to take her out of the court 
room, and she had been taken out. But that was not 
enough. They dragged her to a room and shut the 
door. I heard her scream and went to her. I was a 
free man and she legally a free woman, and I had a 
right to be by her side. They had no order to lock 
her up or keep me from her. But they barred the 
door, and to scare them away I drew my knife. I 
told them I did not want to hurt any of them, but 
they pulled their pistols. I could have killed half a 
dozen of them if I had Wanted to. Two of them had 
pistols pointed at me. Someone said, 'Let him in if 
he will give up his knife.' I said, 'Certainly,' and gave 
up my knife. They did not take it from me. One 
of them, a man named Taggert, said in my presence 
that he would have shot me if I had not stopped. I 
told him that he would not dare to shoot me, and that if 
he wanted to shoot he would have a chance. Then 
he said he did not want to have any trouble with me, 



2,^6 LIFE OF DAVID S. TERRV. 

and I told him not to brag after it was all over about 
what he would have done. The fact is, the court was 
frightened of something, and had the room full of 
deputies and fighters of all kinds who wanted a chance 
to make a showing of bravery, and after it was all 
over Judge Field lied in the record. I want to get 
him on the witness stand to repeat his story, and then 
we will see if there is any law against perjury." 

During his term of imprisonment in the Alameda 
County Jail his manner was complete ly changed. He 
yielded to his impetuous nature by giving voice to 
expressions that astonished his most intimate friends. 
The man of historic and proverbial reticence became 
the most violent declaimer, and the public press took 
up the utterances and sent them abroad clothed in all 
the garments that the ingenuity of reporters and edi- 
tors knew how to dress them to produce the most 
sensational effect. The coloring given to them by a 
few of the unwise editors, which only inspired a more 
lasting hatred, made them still more potent to arouse 
the greatest anxiety. One newspaper, the San Fran- 
cisco Examiner , which was not friendly towards Jus- 
tice Field, made the astonishing and unguarded an- 
nouncement that, from his past character, it would be 
folly to suppose that Judge Terry would permit such 
an act of humiliation to go unavenged. 

J. H. O'Brien, of Stockton, an old-time friend, visited 
Terry in the Alameda Jail on one occasion, and in a 
conversation Terry said: — 

"When I get out of jail I will horsewhip Judge 
Field. He won't dare to come back to^California, but 
the earth is not big enough to hide him from me." 



THE SHARON DIVORCE CASE. ^T^/ 

O'Brien advised him not to assault Judge Field in 
any way, as the assault would surely be resented. 

"If he resents it," said Terry, "I'll kill him." 

Mrs. Terry, who was present, said, "No, don't 
kill him, judge r just horsewhip him." 

This conversation, which undoubtedly took place, 
became public property, and many others, some true 
and many false, were sent East, and became known to 
the authorities at Washington, and, coupled with the 
reputation which had attached to his name in former 
days for violent acts, gave alarm for the safety of 
Judge Field. 

To one friend who had visited him on business. 
Judge Terry said: "In all the annals of jurisprudence" 
and history of cases of contempt this is the most out- 
rageous. Justice does not demand it. The punish- 
ment inflicted is not corporeal. It is not intended to 
be such. Ten days is just as seyere as six months or 
a year. The offense is not a crime in the eyes of the 
law; it is in the nature of discipline, like incarcerating 
a soldier for disobedience. Judge Field views it 
from a different light. He is a monstrous coward, 
and he safely measures the time he will be detained 
on this coast holding court. He meant that I should 
remain in prison until he had returned East, knowing 
that he deserved punishment, and fearing that I_ 
would mete out the punishment he deserved." 

The spectacle of a man of so much prominence, of 
so much ability and of so much force of character, 
whose absence from the community of great minds at 
the bar was so conspicuous, fretting in a common jail 
under a sentence every sensible man knew was unjust 



;^^S LIFE OF DAVID S. TERRY. 

and made to fit the occasion, created no little sensa- 
tion, and efforts were made by many of his influential 
friends to obtain his release. Some more enthusiastic 
than others appealed to the President for a pardon, 
and the department of justice, through Hon. Zach 
Montgomery, was petitioned, but without effect. All 
attempts to induce him to petition the court for a 
pardon or mitigation of ihe sentence were unavailing, 
until his old friend and former associate upon the 
Supreme Bench, ex-Judge Solomon Heydenfeldt, 
prevailed upon him to present a petition. Letters 
passed between them through the friendly assistance 
of Hon. John A. Stanley, as follows: — 

San Francisco, September lo, 1888. 
My Dear Mr. Terry : The papers which my friend Stanley 
sends you will explain what we are trying to do. I wish to see 
Field to-morrow and sound his disposition, and, if it seems ad- 
visable, will present your petition; but in order to be effective, 
and perhaps successful, I wish to feel assured and be able to give 
the assurance in case of a favorable issue, that it will not be 
followed by any attempt on your part to break the peace, either 
by violence or denunciation. I know you would never com- 
promise me in any such manner, but it will give me the power to 
make an emphatic assertion to that effect, and that ought to help. 
Please answer promptly. Yours as ever, 

S. Heydenfeldt. 

This letter expresses the belief that existed with 
others, that the long term of imprisonment imposed 
was simply the result of cowardly fear, and not as a 
punishment for contempt. Judge Terry answered it 
in the following language: — 

Oakland, September 11, 1888. 
Dear Heydenfeldt: Your letter was handed to me last 
evening. I do not expect a favorable decision from any applica- 



THE SHARON DIVORCE CASE. 339 

rion to the court, and have very reluctantly consented that an 
application may be made. Field probably wishes to pay me for 
my refusal to aid his presidential aspirations four years ago. 

I had a conversation with Garber on Saturday last, in which 
I told him that if I was released I would seek no personal satis- 
faction for what is past. You may say, as emphatically as you 
wish, that I will not commit a breach of the peace; that so far 
as seeking I will avoid meeting any of the parties concerned; but 
I will not promise that I will refrain from denouncing the decision 
and its authors, I believe that the decision was purchased and 
paid for with the coin of the Sharon estate, and I would stay 
here ten years before I would say what I did not beheve. 

If the judges of the Circuit Court wish to do what is right they 
should revoke the order imprisoning my wife. She certainly was 
in contempt of court, but the provocation given by going entirely 
out of the record to besmirch her, ought to betaken into consid- 
eration in mitigation of the sentence. 

Field, when a legislator, thought that no court should be 
allowed to punish for contempt by imprisonment for a longer 
period than five 'days. My wife has already been imprisoned 
double that time for words spoken under very just provocation. 
No matter what the result of the application, I propose to stay 
here until my wife is discharged. Yours truly, 

D. S. Terry. 

There is no mistaking this language, and from it 
the attitude of Judge Terry toward the judges who 
had figured in this case. He had no hesitation in ex- 
pressing the opinion that the decision was fashioned 
after a "cheque" from the Sharon estate, and he was 
not alone in that belief. He had said on other occa- 
sions that he had seen men "mounting to judicial 
positions on golden stirrups, and knew their merce- 
nary and yielding dispositions," and he had also said 
that " Field had never rendered a decision against a 
corporation in his life." The state of mind in which 
he now was admitted of expressions where other oc- 



34^ Life of david s. terry. 

casions would have suggested to his taciturn mind 
the poHcy of silence. His petition for release pre- 
sented the case in his usual deliberate and forcible 
style, and was as follows: — 

In Jail at Oakland, Septemberi4, 1888. 
In the Circuit Court of the United States, Ninth Circuit, North- 
ern District of California. 
To the Hojiorable Circuit Court aforesaid — 

Your petitioner represents that, in all matters and transactions 
occurring in the said court on the third day of September, 1888, 
upon which the order in this matter was based, your petitioner 
did not intend to say or do anything disrespectful to said court 
or to the judges thereof, or to any one of them. That when 
petitioner's wife, the said Sarah Althea Terry, first arose from 
her seat, and before sheuttered a word, your petitioner used every 
effort in his power to cause her to resume her seat and remain 
quiet, and he did nothing to encourage her in her acts of in 
discretion; when this court made the order that petitioner's wife 
be removed from the court room, your petitioner arose from his 
seat with the purpose and intention of himself removing her 
from the court room quietly and peacefully, and he had no 
intention or design of obstructing or preventing the execution of 
said order of the court; that he never struck, or offered to strike, 
the United States marshal until the said marshal had assaulted 
him, and had, in his presence, violently, and as he believed, un- 
necessarily assaulted petitioner's wife. 

Your petitioner most solemnly avers that he never drew, or 
attempted to draw, any deadly weapon of any kind whatever in 
said court room, and that he did not assault, or attempt to 
assault, the United States marshal with any deadly weapon in 
said court room or elsewhere. And in this connection he re- 
spectfully represents that after he had left such court room he 
heard loud talking in one of the rooms of the United States 
marshal, and among the voices proceeding therefrom he recog- 
nized that of his wife, and he thereupon attempted to force his 
way into sa'd room through the main office of the United States 
marshal. The door of this room was blocked with such a crowd 



The SHARON DIVORCE CASE. 341 

of men that the door could not be closed; that your petitioner 
then, for the first time, drew from inside his vest a small sheath 
knife, at the same time saying to those standing in his way in said 
door that he did not want to hurt anyone; that all he wanted 
was to get in the room where his wife was. The crowd then 
parted and he entered the doorway, and there saw a United States 
deputy marshal with a revolver in his hand pointed at the ceiling 
of the room. Someone then said, "Let him in if he will give 
up his knife," and your petitioner immediately released hold of 
the knife to someone standing by. 

In none of these transactions did your petitioner have the 
slightest idea of showing any disrespect to this honorable court or 
any of the judges thereof; that he lost his temper, he respectfully 
submits, was a natural consequence of himself being assaulted 
when he was making an honest effort to peaceably and quietly 
enforce the order of the court, so as to avoid a scandalous scene 
and of seeing his wife so unnecessarily assaulted in his presence. 

Wherefore your petitioner respectfully requests that this honor- 
able court may, in the light of the facts herein stated, revoke the 
order made herein, committing him to prison for six months, and 
your petititioner will ever pray, &c. D. S. Terry. 

This petition was presented to the court by Judge 
Stanley, and immediately a regular court of inquiry 
was instituted to present evidence to controvert the 
statements made by Judge Terry in his application for 
release. Affidavits were prepared and filed by the 
United States marshal and several of his deputies and 
a statement submitted by Justice Field, no two of 
which were identical in the relation of facts, and all 
taking issue with, and denying, those presented by the 
petitioner. This was readily accounted for in the fact 
that Judge Terry had imposed upon him a notoriety 
for rashness that he did apt fully possess nor deserve. 
His presence in the midst of such an exciting scene 
instituted by his wife, and in which he became per- 



342 LIFE OF DAVID S. TERRY. 

sonally involved, was a signal for trepidation and fear, 
and in the expectation that something would happen 
that did not many surmised that it did, and if it did not 
it was safe to say that it did, and they were justified in 
swearing to it. Such is fame. The wild reports on 
the streets and general alarm that prevailed in the 
court room were sufficient evidences that no reliance 
could be placed upon any positive statement of facts, 
and they also go to prove that the testimony presented 
by these men, although honestly and candidly given, 
was worthless in connection with the true state of 
affairs. "The best of knowledge and belief has been 
a convenient city of refuge for, and a shield to protect, 
many persons from committing rank perjury. It has 
been the testimony of every man whose moral standing 
was worthy of note who knew Judge Terry in all the 
trials of his life, that his words always bore the "stamp 
of incontestible truth," and that he was the most bitter 
and relentless enemy of trickery, fraud and chicanery. 
Nothing has ever transpired up to the present time to 
destroy that confidence in his high integrity, and, as 
between him and his adversaries in this instance, there 
is but one choice to make. It may have been the 
judgment of the court that, according to his own testi- 
mony, he was sufficiently guilty to demand the punish- 
ment as adjudged, and the petition was denied. 



CHAPTER XLIII. 

Political Ostracism — Power of the Federal 
Judges — Terry's Great Work to Combat the 
Power of Money by Legal Arguments — His 
Celebrated Petition for a Rehearing of the 
Sharon vs. Sharon Case before the Supreme 
Court — A Remarkable Document. 

Political ostracism is one of the potential weapons 
that are used to destroy the confidence of the people 
in the perpetuity of a free government. The exercise 
of such a power over the cringing slaves to political 
bosses presents an impediment to honesty and in- 
tegrity — virtues that are becoming extinct and obsolete 
in the directory of public servants. The power held 
by corporations i^ an overpowering one, and although 
high tribunals of justice are occupied by men who 
strut in garbs of sovereign and exclusively independent 
will and action, the reins are held by other hands, like 
the spirit of evil that guides the storm and the tempest 
in their course of desolation. The people who were 
sovereigns once are sovereigns no more, except when 
the day of wrath and retribution is forced upon them 
through excesses in corrupt practices or aggressive 
autocracy by officials. 

While in the Alameda County Jail Judge Terry was 
visited by numerous admirers, but seldom by officials, 

27, (343) 



344 ^^^"^ OF DAVID S. TERRY. 

although he had many sympathizing friends holding 
official positions. They feared the influence that Justice 
Field had with the Federal authorities and the power- 
ful corporations. One gentleman, who was a great 
admirer of Terry, and who had a son employed in 
the service of one of the large corporations, un- 
wittingly visited the judge while he was in jail. In a 
few days thereafter his son was discharged and no 
reason given for the act. In the course of inquiry he 
was made to understand the cause, and being a man 
of spirit, he informed the agent of the company that 
if his son was not re-instated he would give the facts, 
and the names of the parties in proof, to the world. In 
due time his son was re-instated. 

A man who holds a Federal position in San Francisco 
— a Republican — and an old-time friend of Judge Terry^ 
in presenting to the writer some valuable information 
in connection with the judge, was very particular in 
demanding that his name be suppressed in relation to 
the facts. "For," said he, "if it should appear in a 
friendly and favorable mention of Judge Terry I would 
lose my position in a few days. You have no concep- 
tion of the power that Field exercises over the senators 
and representatives in Congress through his friend- 
ship to the corporations." In the strides to a " higher 
civilization " the directory is transferred from the cre- 
ative power lodged in the consciences of the masses, 
who are right as a rule, to the purchasing power that 
has entered the field of speculation in the broad chan- 
nels of manhood* As a commercial commodity man- 
hood has entered the field and opened the flood gates 
of vice, corruption and inevitable revolution. 



THE SHARON DIVORCE CASE. 345 

David S. Terry made no further attempt to secure 
release from prison, and was content to submit as a 
precedent for outrage in the hands of judicial 
authority. A contempt that required six months to 
atone for was one of the anomalies in jurisprudence, 
and there was only one man in this country who could 
fathom the extent of the crime committed, and that 
man was the individual that Judge Wallace character- 
ized as the " ablest man that lived, that ever had lived, 
or ever would live," and Judge Terry was the most 
prominent man to make the example of, as his position 
•would lend both force and effect to the transaction and 
give prominence to Justice Field as a creator of a new 
idea. But time was everything to Field. He could 
not afford to uncage the lion until he had crossed the 
continent. 

While in prison Judge Terry did not fret and fume 
always. He was allowed privileges by the sheriff not 
granted ordinary criminals, and his wife, who remained 
with him until the day of his discharge, administered 
to his wants. During the time he commenced and 
prosecuted the work of preparing his argument on 
motion for a rehearing of the Sharon vs. Sharon case 
before the Supreme Court, and also an argument on 
the question of irrigation, which was in process of trial 
before the Superior Court of Tulare County, in- 
volving large landed interests. The former of these 
two documents was a marvel in research and in the 
presentation of facts, and has been designated by a 
gentleman of high judicial and legal standing, and a 
member of the Supreme Bench, as the most remark- 
able and valuable contribution to the literature of the 
legal profession ever presented. > 



346 LIFE OF DAVID S. TERRY. 

As an example of its marshaling of facts and argu- 
ment, the following quotations will be interesting to 
that large portion of patrons who will necessarily read 
this book: — 

"That the opinion of the court is in violation of a 
rule of law which has been settled by the Supreme 
Court of this State in a long and unbroken line of de- 
cisions, beginning with Dewey vs. Gray (2 Cal. 374). 
In Hay neon New Trial and Appeal, section 271, ihe 
rule is stated as follows: 'However erroneous a 
decision of the Supreme Court may be, it must 
be adhered to in all subsequent proceedings in the 
same case. It becomes the law of the case and can- 
not be disregarded either by the trial court or the 
Supreme Court. T/ns rule is fii'uily established. It 
was first announced in Dewey vs. Gray (2 Cal. 374). 
In that case, with reference to its decision on a former 
ap' eal, the court, per Heydenfeldt, J., said: 'The 
latter part of the decision is in abrogation of one of 
the plainest principles of law, and if this case was a 
new one I should not hesitate to overrule it, but lesal 
rules deprive us of the power to do so. The decision 
having been made in this case, it has become the law 
of the case, and is not subject to revision.' The doc- 
trine of Dewey vs. Gray was followed and approved 
in subsequent cases.' (Citing Clary vs. Hoagland, 6 
Cak 683.) 

"In Leese vs. Clark (20 Cal. 416), Field, C. J., de- 
livering the opinion of the court, said: 'The decision 
of this court on the first appeal became the law of 
the case and fixed the right of the parties in this 
action under their respective grants. A previous 



THE SHARON DIVORCE CASE. 347 

ruling of the appellate court, as we held in Phelan vs. 
San Francisco, upon a point distinctly made, may be 
only authority in other cases to be followed and ap- 
proved, or to be modified or overruled, according to 
its intrinsic merits; but in the case in which it is made, 
it is more than authority — it is a final adjudication 
from the consequences of which the coiir^ cannot de- 
part nor the parties relieve themselves. (20 Cal.39.) 
Such has been the uniform doctrine of this court for 
years, and after repeated examinations and affirma- 
tions it cannot be considered as open to further discus- 
sion. (See Dewey vs. Gray, 2 Cal. '^']'j\ Clary vs. 
Hoagland, 6 Cal. 687; Gunter vs. Laffan, 7 Cal. 592; 
and Davidson vs. Dallas, 15 Cal. 82.) Nor is the 
doctrine peculiar to this court. It is the established 
doctrine of the Supreme Court of the United States 
and the Supreme Courts of several of the States {ex 
parte Sibbald, 12 Peters, 491; Washington Bridge 
Co. vs. Stewart, 3 How. 413; and Russell vs. La 
Rogue & Hatch, 13 Ala, 151). And the reason of 
this doctrine is obvious. The Supreme Court has no 
appellate jurisdiction over its own judgments; it can- 
not review or modify them after the case is once past 
by the issuance of the remittiture from its control. It 
construes, for example, a written contract, and deter- 
mines the rights and obligations of the parties there- 
under, and upon such construction it affirms the judg- 
ment of the court below. The decision is no longer 
open for consideration; whether right or wj'ong it has 
beco7ne the laiu of the case. This will not be contro- 
verted. 

*"So, on the other hand, if upon the construction of 



34^ LIFE OF DAVID S. TERRY. 

the contract supposed, this court reverses the judg- 
ment of the court below and orders a new trial, the 
decision is equally conclusive as to the principles 
which shall govern on the retrial; it is just as final to 
that extent as a decision directing a particular judg- 
ment to be entered, as to the character of such judg- 
ment. The court cannot recall the case and reverse 
its decision after the remittitur is issued. It has de- 
termined the principles which shall govern, and having 
thus determined, its jurisdiction in this respect is gone. 
And if a new trial is had in accordance with its decis- 
- ion, no error can be alleged in the action of the court 
below. (Young vs. Frost, i Md. 374; McClellan vs. 
Crook, 7 Gill. 338).' 

"In Jaffe vs. Skae (48 Cal. 543), Wallace, C. J., 
delivering the opinion of the court, said: 'It has 
always been the settled rule in this court that a de- 
cision rendered upon facts appearing on the record in 
which the legal effect of these facts is declared, is in 
all subsequent proceedings in the case, and so long as 
the facts themselves appear without material qualifica- 
tion, a final adjudication of the rights of the parties 
from which the court cannot depart nor the parties 
• relieve themselves.' 

"Upon this point I quote from the opinion of Mr. 
Justice Thornton: — 

*"In passing on the question presented by counsel 
in this case, it becomes necessary to determine what 
was determined in Sharon vs. Sharon (75 Cal. i). 

'"The appeal in 75 California was from the judg- 
ment, and this is an appeal from an order denying a 
motion for a new trial in the same case. 



THE SHARON DIVORCE CASE. 349 

" 'The opinion of the court in the former appeal was 
drawn up by Justice McKinstry and concurred in by 
Searls, C. J., and Temple and Paterson, J. J. To 
determine what was ruled on the former appeal we 
have to examine this opinion. 

"Tn my judgment the following propositions were 
there decided to be law and applicable to the case: — 

'"First. That an agreement between a man and a 
woman to become husband and wife, made per verba 
de prcBsenti, is not invalidated by the fact that it con- 
tains a collateral promise by one of the parties not to 
make the marriage known for two years without the 
consent of the other. 

"' Second. That under section 55 of the civil code 
it is not necessary to the validity of a marriage, not 
attended by a solemnization, that the present consent 
to marry should be followed by a public mutual as- 
sumption of marital rights, duties, and obligations. 

"'Third. That sexual intercourse may be inferred 
from cohabitation; that evidence that a man and 
woman have had sexual intercourse, whether direct or 
consisting of proof of a further fact from which the 
intercourse may be inferred, as cohabitation, is, when 
preceded by the present consent of the parties to 
marry, evidence that the parties have actually as- 
sumed all the duties incident to marriage. 

"'Fourth. That present consent to marry kept 
secret, followed by secret cohabitation, is sufficient to 
constitute marriage. 

*" Near the close of the opinion it is said: — 

" 'The court below found as facts that, during a 
certain period after the consent to marry, "the plain- 



350 LIFE OF DAVID S. TER'RY. 

tiff and defendant lived and cohabited in the way 
usual with married people . . . and mutually 
assumed toward each other their marital rights, duties 
and obligations," If, as we have said, they might mutu- 
ally assume marital rights and duties, although their 
relation was kept secret, the insertion of the words 
"toward each other" does not vitiate the finding, and 
the finding of facts is conclusive on this appeal.' (75 
Cal. 36.) 

'"As summing up the ruling in the opinion it is said: 
"Our conclusion is that the provision of the code re- 
quiring a mu.ual assumption of marital rights and 
duties to follow consent does not make it indispen- 
sable to the validity of the marriage that the relation 
between the parties shall be made public." (75 Cal. 

2,7') 

" 'Although the word " public " is used in the portion 

last quoted from the opinion to qualify the nature of 

the relation, it should be observed that in the portion 

previously quoted (which by a few sentences precedes 

the portion last quoted) the qualifying words are, 

"although this relation was kept secret." 

*" It seems to me that the fair construction of the 
opinion is that it was intended to lay down the rules 
of law set forth in the propositions above stated as 
applicable to the relation between the parties, though 
it was during the whole period of their intercourse 
kept secret. 

"'In holding that the findings sustained the judg- 
ment, the points above stated were, in my view, neces- 
sarily held. If they had not been, the court could 
not have determined to affirm the judgment. 



THE SHARON DIVORCE CASE. 351 

'"Justice Templeconcurred in the prevailing opinion, 
and expressed his views in plain and direct terms. He 
said: "The word 'consummation' was avoided in 
section 55, because it has come to be a euphemism 
for the more indelicate word copula, and thereby has 
acquired a more narrow meaning than was intended. 
Therefore the phrase which only indicates the assump- 
tion of the contract relation was used. But in section 
57 the word 'consummation' is substituted for the 
phrase. It cannot mislead here, for it has been 
defined, but it shows that the mutual assumption of 
marital rights, duties or obligations is of the nature of 
consummation — something in the nature of part per- 
formance of the consent to present marriage, though 
that is not limited to the copula.^'' 

"'In Leese vs. Clark the question of the conclusive- 
ness of the former decision in this court is considered. 
It is there said: "But in the case in which the de- 
cision is made it is more than authority — it is a final 
adjudication, from the consequences of which the 
court cannot depart, nor the parties relieve them- 
selves." After stating that this has been the uniform 
doctrine of this court for years, and after repeated ex- 
aminations and affirmations it cannot be considered as 
open to further discussion, and that it is the doctrine 
of the Supreme Court of the United States and of 
the Supreme Courts of several of the States, citing 
several authorities for the statements made, the 
opinion proceeds thus: "And the reason of the doc- 
trine is obvious. The Supreme Court has no appel- 
late jurisdiction over its own judgments; it cannot 



35^ » LI^E OF DAVID S. TERRY. 

review or modify them after the case has once passed, 
by the issuance of the remittitur, from its control. It 
construes, for example, a written contract and deter- 
mines the rights and obligations of the parties there- 
under, and upon such construction it affirms the 
judgment of the court below. The decision is no 
longer open for consideration. Whether right or 
wrong, it has become the law of the case. This will 
not be controverted. So, on the other hand, if upon 
the construction of the contract supposed this court 
reverses the judgment of the court below and orders 
a new trial, the decision is equally conclusive as to the 
principles which shall govern on the retrial. It is just 
as final to that extent as a decision directing a par- 
ticular judgment to be entered is as to the character 
of such judgment. The court cannot recall the case 
and reverse its decision after the remittitur is issued. 
It has determined the principles of law which shall 
govern, and having thus determined, its jurisdiction 
in that respect is gone. And if the new trial is had 
in accordance with this decision, no error can be 
alleged in the action of the court below.'" 

The court decided on the several points that — 
First, the contract was genuine. Second, that the 
evidence does establish what was found by the trial 
court, and the court on the former appeal held this was, 
with other matters, found sufficient to constitute 
marriage. 

" The opinion then proceeds to examine the evidence 
to support the third finding that the parties assumed 
toward each other marital rights, duties and obli- 
gations, and arrives at the conclusion that it is shown 



THE SHARON DIVORCE CASE. 353 

by the evidence that the parties did not Hve together 
in a common home; that they did not hold themselves 
out to the public as husband and wife, but represented 
themselves as single persons; and therefore, as there 
was no public assumption of marital rights, duties, or 
obligations, the marriage was invalid. 

"We submit that in arriving at this conclusion the 
court lost sight of a rule equally as well established 
as the one cited as a reason for not disturbing the 
present finding — that is, the rule which makes the de- 
cision of the appellate court upon a question litigated 
before it the law of that case and a finality. This 
very question was fully argued by both sides on the 
appeal from the judgment; it was as fully presented on 
that appeal as on this, and was the only question in- 
volved in that appeal. 

" The ninth finding (transcript, folio 7 1 ) was asked 
by the defendant for the sole purpose of presenting 
this question squarely to the appellate court on the ap- 
peal from the judgment. It did present the question^ 
and that question was decided. 

"The ninth finding is as follows: 'That defendant 
never introduced plaintiff as his wife, nor spoke of her 
as such in the presence of other persons; that plaintiff 
never introduced defendant as her husband, nor spoke 
to nor of him to other persons in his presence as her 
husband; that the parties were never reputed among 
their mutual friends to be husband and wife, nor was 
there at any time any mutual open recognition of such 
relationship by the parties, nor any public assumption 
by the parties of the relation of husband and wife.' 

"It cannot be contended that the evidence in the 



354 LIFE OF DAVID S. TERRY. 

record presents this point in any stronger light than it 
is presented by the findings. An examination of the 
record of the case of Sharon vs. Sharon, decided by 
the Supreme Court of CaHfornia in January, 1888, and 
reported in 'j^ Cal., page i, will conclusively prove 
that the question as to whether a public assumption of 
marital rights, duties or obligations was necessary to 
the validity of a marriage in this State, was clearly 
presented by that record, that it was fully considered, 
and was the only question decided upon the appeal 
from the judgment. The other points decided in the 
opinion of th: court arose on the appeal from the 
order for alimony and counsel fees, which was in the 
same record, the two appeals being argued together. 

"The briefs and arguments of counsel on file in the 
record will show that this was the only point argued 
on the appeal from the judgment. Though the 
record of two appeals was contained in one tran- 
script, and both were argued together, the appel- 
lant's attorneys filed separate briefs — one on the 
appeal from the judgment, the other on the 
appeal from the order awarding alimony and counsel 
fees. And in the briefs on appeal from the judgment 
one point only was made and argued, that is, whether 
it was necessary to the validity of a marriage not 
solemnized that there should be an open public 
assumption of marital rights, duties or obligations. 

"The brief of Stewart & Herrin, also for appellant, 
quotes the ninth finding of Judge Sullivan in Italics, 
and then proceeds: 'The question presented by this 
record is, Can a marriage be constituted in this State 



THE SHARON DIVORCE CASE. 355 

without a solemnization, while its existence is, by 
agreement of the parties as well as by their conduct, 
concealed from all third persons?' (Page 6 of the 
brief of Stewart & Herrin.) The argument of Judge 
Hoge, which is printed and on file, is confined to a 
discussion of that single question, which was squarely 
presented in the record as well as in the briefs and 
arguments of counsel on both sides. 

"There was no quibbling attempt to distinguish be- 
tween concealing the contract and concealing the mar- 
riage. It was not suggested that the promise not to 
disclose the contract or its contents did not bind the 
party to conceal the marriage, or that the party was at 
liberty to 'palter in a double sense and keep the word 
of piomise to the ear and break it to the hope.' 

"But the question argued and submitted to the court 
was whether concealment of the marriage by the 
parties and holding themselves out to their acquaint- 
ances and the public as unmarried persons, renders 
the marriage invalid. That was the only question 
presented by the record, and that was the only ques- 
tion decided by the court. 

"That decision pronounced in this case became and 
is the law of the case, and cannot be reversed in the 
same case without a violation of a rule of law, which 
the Supreme Court, as early as 20 Cal., declared to be 
so well established as not to be open for further dis- 
cussion. In view of the fact that the question whether 
the concealment of the fact of marriage, and a want 
of any public assumption of marital rights, would 
render invalid and unsolemnize marriage under the 
laws of California, had been solemnly decided by this 



35^ LIFE OF DAVID S. TERRY. 

court in this very case, and in view of the numerous 
decisions of this court as to the law of the case, it is 
not surprising that appellant's counsel did not make an 
extended argument on this appeal on the point de- 
cided in this very case, but, relying on the prior decis- 
ions of this court, 'dismissed the question so important 
to their client on a general statement of the views 
covering these pages of the brief 

"The opinion of the court discusses the policy of the 
law of marriage and the evils which will follow from 
the provisions of the civil code concerning marriages, 
as construed by the Supreme Court in the appeal from 
the judgment in Sharon vs. Sharon. 

" Our reading of the constitution has taught us that 
the policy of laws was a matter to be determined ex- 
clusively by the Legislature; that courts have no juris- 
diction to inquire whether a statute duly enacted by 
the Legislature is politic or the reverse, or whether 
its effect will promote or hinder the prosperity of the 
country or the people; and, though courts have 
sometimes assumed to amend statutes by judicial 
construction, such attempts are in violation of the 
constitution, of the oath taken by the judges to sup- 
port the constitution, and are plain usurpations by 
the courts of the powers confided by the organic law 
to the legislative department of the government. 

"A conclusive reply to that part of the opinion of the 
court in this case which descants on the evils which 
will follow if the law enacted by the Legislature, as 
construed .by the Supreme Court on the appeal from 
the judgment, prevails, is: That though the act has 
been in force for sixteen years, no such results have 



THE SHARON DIVORCE CASE. 357 

followed; that the decision of the Superior Court in 
Sharon vs. Sharon, giving the same construction to the 
civil code as was given by the Supreme Court in 
1888, was rendered and published in December, 1884. 
Yet the law-making power, which is the sole and ex- 
clusive judge of the policy of laws, has not repealed 
or amended the sections of the code so construed. 
There have been three regular sessions of the Legis- 
lature since the decision of the Superior Court in the 
case of Sharon vs. Sharon. The case attracted more 
attention than any other case ever tried in this State. 
The evidence was very fully published in the news- 
papers, and was read by the people in every county 
and village in the State. The same publicity was 
given to Judge Sullivan's decision. Yet the Legis- 
lature was unable to discover any of the evils which 
this court sees in the provisions of the code on the 
subject, and the code was in nowise changed. The 
universal construction of the code, by both lawyer 
and layman, was that given by the Superior Court — 
the only construction which can be given to its plain 
language without adding words which the Legislature 
did not use. The people and the Legislature were 
satisfied with the law, and refused to amend or re- 
peal it. 

"The decision of the Supreme Court on the appeal 
from the judgment in Sharon vs. Sharon was delivered 
in January, 1888. In November of that year a Legis- 
lature was elected, which met in January, 1889. No 
member of this Legislature was able to see any of the 
evils which would result from the law as construed by 
the Supreme Court, and no attempt was made to 



35^ LIFE OF DAVID S. TERRY. 

amend it. In view of all these facts, we respectfully 
submit that any attempt by a court to amend the civil 
code by judicial construction will be a plain usurpation 
of legislative functions, and a violation of the con_ 
stitution of this State. 

"There is an attempt, in theopinion of Justice Works, 
to show that the well-established doctrine of the law 
of the case does not apply to this appeal, and that the 
decision of this court on the appeal from the judgment 
in Sharon vs. Sharon does not prevent or hinder the 
court from deciding the question raised by appellant's 
counsel that the secret assumption of marital rights, du- 
ties or obligations, was not a sufficient compliance with 
the code to render the marriage by contract valid. He 
says: 'The sole and only question presented to this 
court for decision on the appeal from the judgment was 
whether or not, assuming that every act necessary to 
constitute a valid marriage had been done by the 
parties, the fact that one or more of those necessary re- 
quirements of the statute had been kept secret would 
nullify the same and 7'ender the same i^ivalid' 

"No such construction was ever before given to that 
decision. The justices who wrote dissenting opinions 
in that case did not so understand it. The dissenting 
opinion of Justice McFarland does not even hint at 
such an understanding. The opinions of Justice 
Thornton in that case and this are both clearly repug- 
nant to such an understanding. The language of the 
opinions of Justices McKinstry and Temple clearly 
disproves such a construction of the point argued and 
decided on that appeal. Not one of the justices who 
were in consultation over that case, and who, it must 



tHE SHARON DIVORCE CASE. 359 

be presumed, understood the questions they were to 
decide, ever construed the decision as does Justice 
Works, who did not hear the argument or read the 
briefs, and therefore did not know that the only question 
argued by counsel for appellant and decided on that 
appeal was, as stated in the brief of Stewart & Herrin: 
'Can a marriage be constituted in this State without 
solemnization while its existence is, by an agreement of 
the parties as well as by their conduct, concealed from 
all third persons?' 

"To arrive at his understanding of the former de- 
cision and to draw a distinction between the questions 
presented on the two appeals, Justice Works wasobliged 
to ignore the ninth finding of facts by Judge Sullivan, 
which finds all that Justice Works says the evidence 
shows, and presents .the question of the validity of a 
marriage by written contract carefully concealed, fol- 
lowed by the secret assumption of marital relations, 
as fully and squarely as could be presented in any case, 
and was squarely met and decided by the court. The 
finding is as follows: — 

'"9. That defendant never introduced plaintiff as his 
wife, nor spoke of her as such in the presence of other 
persons; that plaintiff never introduced defendant as 
her husband, nor spoke to nor of him to other persons 
in his presence as her husband; that the parties were 
never reputed among their mutual friends to be hus- 
band and wife, nor was there at any time any mutual, 
open recognition of such relationship by the parties, 
nor any public assumption by the parties of the rela- 
tion of husband and wife.' 

"The court distinctly found that there was not at 
24 _ 



360 Life of david s. terrV. 

any time any mutual, open recognition or public as- 
sumption of the relation of husband and wife by the 
parties. 

"Justice Work's construction of the former decision 
did not satisfy himself, and being conscious that he 
had completely failed to maintain his position as to 
what th'j court decided on the appeal from the judg- 
ment, abandons it, choosing rather to ' beard the lion 
in his den' by boldly sweeping away evej'ylking that 
was decided, and claiming that the case did not fall 
within the rule of 'the law of the case.' 

"He says that where two appeals are taken, one from 
the judgment and one from an order denying a motion 
for a new trial, the principles announced by the court 
in the affirmance of the judgment are not binding on 
the court on the hearing of the appeal from the order 
refusing a new trial, and may be modified or wholly 
changed if thought to be erroneous. 

*' The reason assigned for this new doctrine is 
that — 

" 'The law of this State permits two appeals in the 
same case, one from the judgment and the other from 
the order denying a new trial. Both of these appeals 
have a direct effect on the judgment, and if successful 
may vacate it entirely or modify it, as the court may 
determine. These appeals may both be prosecuted 
and be pending in this court at the same time, as was 
the case here until the appeal from the judgment was 
disposed of The fact that this court has declared a 
rule of law in deciding the appeal first reached for de- 
cision, and upon which no action has or can be taken 
until the second appeal is also disposed of, cannot, by 



The SHARON DIVORCE CASE. 36 1 

reason uf the rule invoked by the respondent, prevent 
the court from fully investigating and deciding the 
second appeal to the extent of modifying or wholly 
changing its former decision, if it be satisfied that an 
error has been committed. The case must be re- 
garded as within the control of this court until both 
appeals are determined.' 

"This is at variance with all that has ever been said 
upon the subject by law writers and the authorities. 
It will be seen that he does not cite a single case in 
support of the doctrine. What he decides is at vari- 
ance with all that has ever been said on the subject by 
law writers and by the courts. 

'Tf the several appeals allowable in a case are 
within the control of the court until all are determined 
to the extent that the court can modify or wholly 
change any ruling made in either, then all the appeals 
should be heard together; for it is useless waste of 
time to have one appeal heard and determined when 
the principle upon which it is determined is subject to 
modification or change upon the hearing of the other 
appeals. 

"The failure of the respondent to enter into an ex- 
tended discussion of 'the question so important to 
their client' was due solely to the fact that the ques- 
tion had been fully argued and decided on a former 
appeal of this same case. If the doctrine of the law of 
the case is to be overturned and the question is to be 
re-examined in this case, we invite the attention of 
the court to some of the authorities cited in our argu- 
ment and brief on the former appeal, which we respect- 
fully submit cannot be answered. 



362 Life op david s. terrV. 

" I am not here to deny — nor would any lawyer 
have the face to get up and deny in the presence of a 
court of respectable attainments — that contracts against 
public policy, against good morals, and against the 
express provisions of the statute, are null and void. 
But I do deny — and I say that no authority can be 
found in any book for the proposition, that the con- 
tract found in the second and third findings of Judge 
Sullivan in this case is against public policy, against 
good morals, or opposed to the prohibition of any 
statute. I say that it is a contract perfectly legal and 
valid under the laws of California, and under the law 
of every civilized country in the world, with the ex- 
ception of England, and that it would have been a 
perfectly valid contract in England up to the twenty- 
sixth year of the reign of George II., when the Mar- 
riage Act was passed; that before that time, accord- 
ing to all the authorities, English and American, a 
promise in words of the present, to take a woman for 
a wife and a man for a husband, a mutual promise, 
constituted a marriage; that it constituted a marriage 
at common law, and that it constitutes a marriage in 
every State of the Union, with the exception, I admit, 
of California, where the statute requires something 
more. But I say that the only respect in which the 
statute of California changes the common law rule is 
in the provision that consent alone does not constitute 
the marriage contract; it must be followed by some- 
thing else. It must be followed by a solemnization, 
or by the mutual assumption of rights, duties, or obli- 
gations. 

"I propose to read those statutes in this connection. 



THE SHARON DIVORCE CASE. 363 

Of course the rule in construing a statute is to take it 
all together. This code is one statute. The four 
codes are one statute, and are construed as one law. 
Now the article on personal relations, Title i, Mar- 
riage, commences at section 55, which defines what 
marriage is. It is defined to be *a personal relation 
arising out of a civil contract, to which the consent of 
the parties capable of making it is necessary. Con- 
sent alone will not constitute marriage. It must be 
followed by a solemnization or mutual assumption of 
marital rights, duties, or obligations.' 

"Now what, in the first place, are the rights of 
marriage.-* Cohabitation and sexual intercourse are 

« 

rights which follow that institution. What are the 
duties which devolve upon a husband by that con- 
tract? That he shall support his wife, provide for her 
support and sustenance, and provide for her a resi- 
dence. All that is shown in the findings to have been 
done. What are her duties? To live with him and be 
a companion to him; to perform the duties he requires 
of her. Now the court finds that this contract of 
marriage was entered into between these parties on 
the 25th of August, 1880; that they each signed 
the paper, which is set out in the findings, and 
which I say in any country in the world except En- 
gland would at this present time constitute a valid and 
binding marriage without anything else whatever. 
And it would have been a good and valid marriage in 
England before the twenty-sixth year of the reign of 
George II. The gentlemen would ask the court to 
add a word to that statute. They ask the court by 
judicial legislation to add the words 'public mutual 



364 LIFE OF DAVID S. TERRY. 

assumption of marital rights and duties.' If that is 
to be done it must be done by the Legislature by 
legislative action, and not by judicial legislation. Our 
government is divided into three departments, legis- 
lative, executive and judicial. It is the province of 
the Legislature to pass laws, to amend laws, to change 
laws. It is the province of the courts to construe the 
laws, and they should be able to say in support of 
their decisions, * Thus the law is written.' You can- 
r.ot add one word to, or subtract one word from the 
statute, which expresses the sovereign will of the law- 
making power. You are here to construe and not 
make laws. What we ask is that this law shall be 
construed according to the rules of construction laid 
down in all the books, and according to the expressed 
will and intention of the Legislature as expressed 
in the law itself. There is no room for construction. 
The law is so plain that a wayfaring man, though 
a fool, cannot err in construing it. 

"All marriages are lawful except incestuous marriages, 
marriages between whites and blacks, and marriages 
during the lifetime of a former wife or husband who 
has not been divorced. All the other provisions 
are directory, and although the Legislature must have 
known' — although there must have been lawyers in 
the Legislature who must have known the rules — 
the universal rule, which has been adopted by the 
courts of the United States and the courts of En- 
gland, that these statutes are merely directory, and 
that a failure "to comply with the provisions of the 
statute, although it may subject the parties to prose- 
cution or punishment for a crime or misdemeanor, 



THE SHARON DIVORCE CASE. 365 

Joes not affect the validity of the marriages. Yet out 
of abundant caution the Legislature provided, in sec- 
tion sixty-eight, that non-compHance did not invali- 
date any lawful marriage. The books are full of 
those cases from almost every State in the Union. I 
won't take time to read the cases, but I shall read 
only one or two. 

"I read from the case of Meister vs. Moore (96 
U. S. 76). The opinion commences on page seventy- 
eight. It was a case which came up in the Circuit 
Court of Michigan, and involved the validity of a 
marriage which took place under the laws of that 
State. 

"Mr. Justice Strong delivered the opinion of the 
court: 'The learned judge of the Circuit Court in- 
structed the jury that if neither a minister nor a 
magistrate was present at the alleged marriage of 
William A. Mowry and the daughter of the Indian 
Pero, the marriage was invalid under the Michigan 
statute, and this instruction is now alleged to have 
been erroneous. 

'"It certainly withdrew from the consideration of the 
jury all evidence, if any there was, of informal mar- 
riage by contract by verba de presenti. 

'''That such a contract constitutes a ma^'riage at 
common law there can be no doubt, in view of the ad- 
judications made in this country from its earliest 
settlement to the present day. 

'"Marriage is everywhere regarded as a civil con- 
tract. Statutes in many of the States, it is true, 
regulate the mode of entering inio the . contract, hut 
they do not confer the right. 



366 LIFE OF DAVID S. TERRY. 

"'Hence they are not within the principle that 
where a statute creates a right and provides a remedy 
for its enforcement the remedy is exclusive. 

" 'No doubt a statute may take away a common law 
right, but there is always a presumption that the 
Legislature has no such intention unless it be plainly 
expressed. A statute may declare that no marriages 
shall be valid unless they are solemnized in a pre- 
scribed manner; but such an enactment is a very 
different thing from a law requiring all marriages to be 
entered into in the presence of a magistrate or 
clergyman, or that it be preceded by a license or pub- 
lication of bans, or be attested by witnesses. Such 
formal provisions may be construed as merely directory, 
instead of being treated as distinctive of a common 
law right to form the marriage relations by words of 
present assent. And such we think has been the rule 
generally adopted in construing statutes regulating 
marriage. Whatever directions they may give re- 
specting its formation or solemnization, courts have 
usually held marriages good at common law to be 
good notwithstanding the statutes, unless they con- 
tain express words of nullity. This is the con- 
clusion reached by Mr. Bishop after an examination 
of the authorities.' (Bishop on Marriage and Divorce, 
section 283 and notes.) 

"In Parton vs. Hervy (i Gray, Mass., 119), where 
the question was whether the marriage of a girl only 
thirteen years old, married without parental consent, 
was a valid marriage (the statute prohibiting clergy- 
men and magistrates from solemnizing marriages of 
females under eighteen without the consent of parents 



THE SHARON DIVORCE CASE. 367 

or guardians), the court held it good and binding, 
notwithstanding the statute. 

"In speaking of the effect of statutes regulating 
marriage, including the Massachusetts statute, the 
court said: ' The effect of these and similar statutes 
is not to render such marriages when duly solemnized, 
void, although the statute provisions have not been 
complied with. They are intended as directory 
upon ministers and magistrates, and to prevent, as far 
as possible, the solemnization of marriages when the 
prescribed conditions and formalities have not been 
fulfilled. But in the absence of any provision declar- 
ing marriages not celebrated in a prescribed manner 
or between parties of certain ages absolutely void, it 
is held that all marriages regularly made according to 
the common law are valid and binding, though had 
in violation of the specific regulations imposed by 
statute.' 

*"We will not undertake to cite the numerous 
authorities which sustain the opinion in Parton vs. 
Hervey, i Gray. Reference is made to them in Bishop 
on Marriage and Divorce, section 283, ei seq.; in 
Reeve's Domestic Relations, 199, 20t); in Kent's 
Commentary, 90, 91, and in 2 Greenleaf on Evidence. 
The rule deduced by all these writers from the de- 
cided cases is thus stated by Mr. Greenleaf: ' Though 
in most, if not all, of the United States, there are 
statutes regulating the celebration of marriage rites, 
and inflicting penalties on all those who disobey the 
regulations, yet it is generally considered that, in the 
absence of any positive statute declaring that all 
marriages not celebrated in the prescribed manner 



368 LIFE OF DAVID S. TERRY. 

shall be void, or that none but certain magistrates or 
ministers shall solemnize a marriage, any marriage 
regularly made according to the common law, without 
observing the statute regulations, would still be a 
valid marriage.' As before remarked, the statutes are 
held merely directory; because marriage is a thing 
of common right; because it is the policy of the 
State to encourage it, and because, as sometimes 
has been gaid, any other construction would compel 
holding illegitimate the offspring of many parents 
conscious of no violation of law.' 

"The right to marry is not given by the statute; it 
existed before the statute. In the language of the 
books, it is not the child, but the parent, of civil 
government; and in the language of Lord Stowell, a 
marriage might exist between a man and woman if 
thtre were no third person upon the face of the earth, 
as was the case of the parents of mankind. The 
statute does not confer upon anybody the right to 
marry, and a statute which prohibited marriage would 
be void. 

"In the month of April, 1850, the Legislature of 
California adopted the common law of England, so 
far as it is not repugnant to or inconsistent with the 
Constitution of the United States, or the constitution 
and laws of this State, as the rule of decision in all 
the courts. At common law the paper copied in the 
second finding would have itself constituted a mar- 
riage. When the parties, being competent, agree in 
the present to marry, using words in the present, as, 
'I do take you for my wife,' 'I do take you for my 
husband,' the marriage is complete without ceremony 



THE SHARON DIVORCE CASE. 369 

or consummation. Nothing more is needed than in 
language that is mutually understood the parties 
accept each other as husband and wife. 

'"A maxim of the civil law, equally also of the 
ecclesiastical, of the common law, indeed of all law, 
is concensus non coiicuhitus facit rnatt'iTnonium. Hence, 
when parties capable of intermarriage agree to present 
marriage the matrimonial relation is made thereby 
complete, and what is sometimes called the consum- 
mation adds nothing to it. This is true everywhere, 
subjected to the qualification that in some countries 
there are statutes requiring the addition of specified 
ceremonies and forms, but the compliance gives the 
marriage nowhere any additional strength.' 

"According to the argument of the counsel who 
opened the case on the part of the appellant, there 
can be no direct evidence of the contract, but it must 
be shown in every case by cohabitation and reputation; 
that is one way of proving it, when there is no direct 
evidence; that is an inferior class of evidence. The 
direct evidence of the contract itself, by producing the 
signatures of the parties or the witness who was 
present when the contract was made, is far better than 
circumstantial evidence. In many, if not all the States 
of the Union, statutes have been adopted regulating 
the mode in which such contracts shall be entered into, 
and providing the means by which evidence of its 
execution shall be preserved, and also providing for 
the infliction of punishment on those who fail to 
comply with these laws; these statutes do not confer 
the right; they simply provide the mode of entering 
such contract, and notwithstanding the existence of 



370 LIFE OF DAVID S. TERRY. 

such enactment, unless it is therein expressly provided 
that all marriages not entered into in conformity there- 
with shall be void, or that none but certain designated* 
officers shall solemnize the contract, all marriages 
entered into in conformance with the common law, /5>^r 
verba de presenti, are valid and binding. 

"Judge Sullivan, in opinion, deciding Sharon vs. 
Sharon, placed a considerable degree of reliance upon 
an article, or rather a note to an article, written by 
John Norton Pomeroy, in the West Coast Reporter, 
which he was then publishing. This note, I think, 
appeared in the edition of that paper published on the 
ninthday of October, 1884. The paper was a weekly 
publication. It appears from this record that shortly 
after that publication the counsel for the defendant in 
this case wrote a note to Mr. Pomeroy. What further 
communication was had I do not know. What further 
inducements were offered I do not know. What sized 
fee, if any, was paid to Mr. Pomeroy to come in as an 
advocate in this case I do not know; but on the 
twenty-third day of October, 1884, there was a sort 
of retraction, or explanation, or apology, made in that 
periodical. I propose to read the article itself, and I 
propose to read the second article, which apologized 
for it. Now, this article, which was written upon the 
true construction of the civil code, and referring to 
section 55 of the civil code of the State of Cali- 
fornia, the article being upon the true rules for inter- 
preting the code. Mr. Pomeroy used this language 
as to the meaning of the words 'marital rights, duties 
and obligations.' 

" 'Does it mean that two spouses must openly live as 



THE SHARON DIVORCt: CASE. 37 1 

husband and wife, must hold each other out to the 
world as husband and wife? There are strong argu- 
ments against that meaning. In the first place, the 
phraseology to describe exactly that condition has long 
been and is very familiar, and if the authors of the 
code had such a meaning it seems hardly possible that 
they should reject this familiar and expressive phrase- 
ology. Instead of saying that consent must be fol- 
lowed by habit and repute, or by the parties holding 
each other out to the world as husband and wife, 
which would have left no doubt as to their meaning, 
they adopt this uncouth phrase, which does not neces- 
sarily have such a meaning; but in the second place 
such an alteration of the common law rule seems to be 
entirely without any reason and opposed to common 
sense. Under the law previous to the code proof 
that two parties had treated each other as husband and 
wife, had lived together as such, was sufficient to enable 
a jury or court to infer and find the fact of a marriage. 
Why, not at all, because such living and holding out 
of itself constitutes a marriage; but solely because 
from such living and holding out the court and jury 
may find that at some previous time the two parties 
did, as a fact, consent to be married; did, as a fact, 
agree to be husband and wife, the previous actual con- 
sent or agreement to be husband and wife is the ulti- 
mate and essential fact; the mode of life, the holding 
out and the like, are nothing but circumstantial evi- 
dence from which that fact may be inferred. Now, 
when living as husband and wife and holding out as 
such were only necessary evidence for the purpose of 
inferring the facts of a previous consent, it seems 



372 LIFE OF DAVID S. TERRY. 

Strange and useless to require evidence of the same 
kind of holding and living as husband and wife and 
the like when the fact of a prior consent has already 
been clearly established by independent evidence. 
There seems to be no sense in such a great alteration 
of the common law doctrine.' 

" Now, I say that that language expresses the calm, 
impartial, unbiased and unbought opinion of a great 
lawyer, and it is entitled to all the weight that a de- 
liberate opinion from that source is entitled to at the 
hands of a court. I submit that the second article, 
which is quoted in appellant's brief, affords an instance 
of the influence of wealth, and the facility with which 
a rich man may avail himself of the ability and learn- 
ing of the most gifted man, and I say that no one who 
reads the explanatory, or I might say the exculpatory 
article of the twenty-third of October, can fail to see 
that it does not express the true opinion of the author 
as to the construction of the section referred to, and 
that it would have been better for the reputation of 
the writer if it had never been published. Now, let 
us see what that is. 

" I read from Pomeroy's second article: — 
" 'Whatever weight may be due to the considerations 
before suggested in the former article, there are, in my 
opinion, equal if not greater obstacles to an interpre- 
tation which treats the section as having made no 
material alteration in the rule as previously settled — 
the common law rule. If by the previous rule, after 
verba in prcesenti xh& copula yN as sufficient to constitute 
a marriage, it seems almost impossible to suppose that 
in the phrase, "by a mutual assumption of marital rights, 



The SHARON DIVORCE CASE. 3/3 

duties or obligations," the authors of the code and 
the Legislature did not mean something more and 
different — ^something additional. We may wonder at 
the employment of terms so unlike the usual phrase- 
ology of statutes, and may regret that words more 
definite and certain in their meaning were not se- 
lected, and still, if we give any fair and reasonable 
signification to all the language, we can hardly escape 
the conclusion that "a mutual assumption of marital 
rights, duties or obligations" imports acts and conduct 
of the two parties toward each other, and rights and 
duties belonging to the marriage relation which cannot 
possibly be embraced in words ''copula' or the word 
''consummation," or even, perhaps, the word "cohabi- 
tation;" exactly what is meant by the phrase, I repeat, 
only the courts can determine.' 

"Now compare the language of those two articles 
one when he was writing for the instruction of his 
class and his readers, the other after he had been 
communicated with by the attorney for a defendant 
who was willing to pay $25,000 for a worthless paper. 
I say further — and I say it upon the authority of the 
books, and challenge th;^ production of any adjudicated 
case, or any opinion of the writer of a text-book, or 
any dictum of any respectable court to the contrary — 
that an agreement to keep a marriage secret will not 
invalidate it, neither will it necessarily involve in doubt 
the proofs of its existence. (I Bishop on Marriage 
and Divorce, section 252; also. Dairy mple vs. Dalrym- 
ple, 4 Eng. Ecclesiastical, 485.) This authority I 
propose to read, because it is a case almost exactly 
like this, and was decided by one of the greatest 



374 L1F£ of DAVID s. terrv. 

judges that ever presided over an English court, to 
wit, Lord Stowell, formerly Sir William Scott: — 

" 'The facts of the case are these: Mr. John William 
Henry Dalrymple is the son of a Scotch noble family. 
At the age of nineteen, being a cornet in His Majesty's 
Dragoon Guards, he went with his regiment to Scot- 
land in the latter end of March or beginning of April, 
1804. Shortly after his arrival he became acquainted 
with Miss Johanna Gordon, the daughter of a gentle- 
man in a respectable condition of life. What her age 
was does not directly appear — she being described as 
of the age of twenty-one years and upwards — she was, 
however, young enough to excite a passion in his 
breast, and it appears that she made him a return of 
her affections. He visited frequently at her father's 
house in Edinburgh, and at his seat -in the country at a 
place called Braid. A paper without date, marked 
No. I, is produced by her. It contains a mutual 
promise of marriage, and is superscribed "a sacred 
promise." A second paper. No. 2, produced by her, 
dated July 11, 1804, contains a renewed declaration 
of marriage by him, and accompanied by a promise of 
acknowledging her the moment he has it in his power, 
and an engagement on her part that nothing but the 
greatest necessity shall compel her to publish this mar- 
riage. These two latter papers were inclosed in an 
envelope inscribed "sacred promises and engagements," 
and all the three papers are admitted or proved in the 
cause to be of the handwriting of the parties whose 
writing they purport to be. 

'"It appears that Mr. Dalrymple had strong rea- 
sons for supposing that his father and family would 



THE SHARON DIVORCE CASE. 375 

disapprove of this connection, and to a degree that 
might seriously affect his fortune; he, therefore, in his 
letters to Miss Gordon, repeatedly enjoined this obli- 
gation of the strictest secrecy, and she observed it even 
to the extent of making no communication of their 
mutual engagements to her father's family, though the 
attachment and intercourse founded upon it did not 
pass unobserved by one of her sisters, and also by the 
servants, who suspected that there were secret ties, 
and that they were already or soon would be married. 
. . . It appears that they were in the habit of 
having clandestine nocturnal interviews both at Edin- 
burgh and Braid, to which frequent allusions are made 
in their letters. One of the most remarkable of these 
nocturnal interviews passed on the 6th of July, at 
Edinburgh, where she was left alone with two or 
three servants. . . . There is proof enough to 
establish the fact, in my opinion, that he remained with 
her the whole of that night. He continued to write let- 
ters of a passionate and even conjugal import, and topay 
nocturnal visits during the whole of his stay in Scot- 
land, but there was no cohabitation of a more visible 
kind, nor any habit and repute, as far as appears, but 
what existed in the surmises of the servants and the 
sister. His stay In that country was shortened by his 
father, who came down, alarmed, as it should seem, 
by the report ot what was going on, and removed him 
to England on or about the 21st of July. ... In 
England he continued till 1805, when he sailed for 
Malta. His last letter, written on the eve of his de- 
parture, re-inforces his injunctions of secrecy, and 
conjures her to withhold all credit from reports that 
25 



376 LIFE OF DAVID S. TERRY. 

might reach her of any transfer of his affections to 
another. . . . He continued abroad till May, 
1808, with the exception of a month or two in the 
autumn of 1806, when he returned for a purpose un- 
connected with this history, unknown to his father, 
and, as it appears, to this lady. 

*"It is upon this occasion that the alteration of his 
affections first discloses itself, in conversation with a 
Mr. Hawkins, a friend of his family, to whom he gives 
some account of the connection which he had formed 
with Miss Gordon in Scotland, complains of the con- 
sequences of it, in being tormented with letters frpm 
her, which he was resolved never to read in the future, 
and having reason to fear that she would write others 
to his father, he requested Mr. Hawkins to use all 
means of intercepting any letters which she might 
write to the one or the other. 

*' 'Mr. Hawkins executed his commission by inter- 
cepting many letters so addressed, though in conse- 
quence of her extreme importunity he forwarded two 
or three of those addressed to Mr. Dalrymple; and he 
at length wrote to her himself about the end of 1806, 
or the beginning of 1807, and strongly urged her to 
desist from troubling General Dalrymple with letters. 
This led to a correspondence between her and Mr. 
Hawkins; and it was not till the death of Mr. Dal- 
rymple's father (which happened in the spring of the 
year 1807) that she asserted her marriage rights and 
furnished him with copies of these important papers, 
which she denominates, according to the style of the 
law of Scotland, her "marriage lines. " She took nosteps 
to enforce her rights by any process of law. Upon 



THE SHARON DIVORCE CASE. 377 

the unlooked-for return of Mr. Dalrymple, some time 
in the latter part of May, 1808, he immediately visited 
Mr. Hawkins, who communicated what had passed by 
letter between himself and Miss Gordon, and suffered 
him, though not without reluctance, to possess himself 
of two of her letters, which Mr. Dalrymple has exhib- 
ited. Mr. Hawkins, however, dismissed him with 
the most anxious advice to adhere to the connection 
he- had formed, and by no means attempt to involve 
any other female in the misery that must attend any 
new matrimonial connection. 

" 'Within a very few days afterwards Mr. Dalrymple 
marries Miss Laura Manners in the most formal and 
regular manner. Miss Gordon, who had before heard 
some reports of no very definite nature, instantly, 
upon hearing authentic news of this event, takes meas- 
ures for enforcing her rights, and being informed that 
he is amenable only to this jurisdiction, she immedi- 
ately applies for its aid to enforce the performance of 
what she considers as a marriage contract. 

'"The case has proceeded regularly on both sides, 
and has been instructed with a large mass of evidence, 
much of it replete with legal eruditions, for which the 
court has to acknowledge great obligations to the 
ofentlemen who have been examined in Scotland. It 
has also been argued with great industry and ability 
by the counsel on both sides, and now stands for final 
judgment. Being argued in an English court, it 
must be adiudicated according to the principles of 
English law applicable to such cases. But the only 
principle applicable to such a case by the law of En- 
gland is, that the validity of Miss Gordon's marriage 



3/8 LIFE OF DAVID S. TERRY. 

rights must be tried by reference to the law of the 
country where, if they exist at all, they had their ori- 
gin. . . . The law learning of Scotland has been 
copiously transmitted, the facts of the case are exam- 
inable on principles common to the laws of both coun- 
tries, and, indeed, to all systems of law. It is de- 
scribed as an advantage lost that Miss Manners, the 
lady of the second marriage, is not here made a party 
to the suit; she might have been made so in point of 
form, if she had chosen to intervene; in substance she 
is, for her marriage is distinctly pleaded and proven, 
and is as much, therefore, under the attention and 
under the protection of the court, as if she were for- 
mally a party to the question respecting the validity 
of her marriage, which is, in effect, to decide upon the 
validity of her own. 

" 'For I take it to be a position beyond the reach 
of all argument and contradiction^ that if the Scotch 
marriage be legally good, the second or English mar- 
riage must be legally bad. Another advantage inti- 
mated to be lost is this, that the Native Forum would 
have compelled the production of her letters to him 
for the purpose of seeing whether anything in them 
favored his interpretation of the transaction. Surely, 
according to any mode of proceeding, there can be no 
need of a compulsory process to extract them from 
the persons in whose possession they must be, if they 
exist at all. If they contain such matter as would 
favor such an interpretation, he must be eager to pro- 
duce them, for they would constitute his defense. Not 
being produced, the necessary conclusion is either 
that they do not exist or that they contain nothing 



THE SHARON DIVORCE CASE. '^']() 

which he could use with any advantage for such purpose. 
. . The marriage which is pleaded to be con- 
stituted by virtue of some or all of the facts, of which 
I have just given the outline, and to which I shall 
have occasion more particularly to advert in the course 
of my judgment, has been in the argument described 
as a clandestine and irregular marriage. It is cer- 
tainly a private transaction between the individuals, 
but it does not of course follow that it is to be con- 
sidered as a clandestine transaction in any ignominious 
meaning of the word, for it may be that the law of 
the country in which the transaction took place 
may contemplate private marriages with as much 
countenance and favor as it does the most public. It 
depends likewise entirely upon the law of the country 
whether it is justly to be styled an irregular marriage. 

"'In some countries only one form of contracting 
marriages is acknowledged, as in our own, with the 
exception of particular indulgences to persons of 
certain religious persuasions; saving those exceptions, 
all marriages not celebrated according to the pre- 
scribed forms are mere nullities. There is and can 
be no such thing in this country as an irregular mar- 
riage. . . . What is the law of Scotland on this 
point? 

"'Marriage, being a contract, is, of course, con> 
censual, for it is the essence of all contracts to be consti- 
tuted by the consent of parties. Concensus non con- 
ciibitus f Licit matrimoniwm is the maxim of • the 
Roman civil -law, is, in truth, the maxim of all law 
upon the subject, for the concubitus may take place 
for the mere gratification of the present appetite, 



3^0 LIFE OF DAVID S. TERRY. 

without a view to anything further, but a marriage 
must be something more; it must be an agreement of 
the parties looking to the consortium vitcs, and agree- 
ment, indeed, of parties capable of the concubitus , for 
though the concuhitus itself will not constitute mar- 
riage, yet it is so far one of the essential duties for 
which the parties stipulate, that the incapacity of 
either party to satisfy that duty nullifies the contract. 
Marriage in its origin is a contract of natural law; it 
may exist between two individuals of different sexes, 
although no third person existed in the world, as hap- 
pened in the case of the common ancestors of man- 
kind. It is the parent, not the child, of civil society. 
In civil society it becomes a civil contract, regulated 
and prescribed by law, and endowed with civil con- 
sequences.'" 

''Justice McKinstry — At some time in your argu- 
ment, not now, I would like to inquire as to whether 
you find any difference between the law of Scotland 
and the common law of EnMand } " 

''Mr. Terry — No, sir; in this case, the same case, 
Lord Stowell says that they were the same until the 
Act of 26 of George II., which made all marriages 
illegal unless regularly performed, except in the cases 
of some of the dissenting sect. After the 26 of 
George II., Lord Stowell says there can be no irregu- 
lar marriages in England. But the people of the 
United States did not bring the statutes of George 
II. with them when they left England for America. 
The Legislature of California in 1850 did not adopt 
the statutes of George II., but the common law of En- 
gland, and that is the rule of decision in our country 



THE SHARON DIVORCE CASE. 38 1 

where it is not contravened by any provision of the 
Federal Constitution, or our constitution or statutes." 

'\Justice McKinst7y — In that same case it lays 
down the law as being the same prior to that statute." 

^'Mr. Terry — Yes, sir. In this same case the prop- 
osition is laid down and the authorities given for it, 
and I challenge the production of any authority to 
the contrary — and the authorities are Lord Cork and 
Lord Holt — that up to the time of the passage of 
the Act of the 26 of George II., the marriage by 
words present in England was as valid as if it had 
been solemnized by the Archbishop of Canterbury." 

^'Justice Thornton — Did not some question come 
before the House of Lords in the case of Queen vs, 
Millis?" 

''Mr. Terry — Yes, sir; the same question came 
before the House of Lords in the famous Breadalbane 
case, Campbell vs. Campbell, reported in the first 
House of Lords, and I have that case here." 

" *In most civilized countries, acting under a sense 
of the force of social obligations, it has had the sanc- 
tion of religious paper added. It then becomes a re- 
ligious as well as a natural and civil contract, for it is a 
great mistake to suppose because it is the one, there- 
fore it may not likewise be the others. Heaven itself 
is made a party to the contract, and the consent of 
the individuals, pledged to each other, is ratified and 
consecrated by a vow to God. It was natural that 
such a contract should, under the religious system 
which prevailed in Europe, for under ecclesiastical 
notice and cognizance with respect both to its theo- 
logical and its legal construction, though it is not un- 
% 



382 LIFE OF DAVID S. TERRY. 

worthy of remark that amidst the manifold ritual 
provisions made by the divine Lawgiver of the Jews 
for various offices and transactions of life, there is no 
ceremony prescribed for the celebration of marriage. 
In the Christian, marriage was elevated to the dignity 
of a sacrament in consequence of its divine institution 
and of some expressions of high and mysterious im- 
port respecting it contained in the sacred writings. 
The law of the church, the canon law (a system which, 
in spite of its absurd pretensions to a higher origin, is 
in many of its provisions deeply enough founded in 
the wisdom of man), although in conformity to the 
prevailing theological opinion it reverenced marriage 
as a sacrament, still so far respected its natural and 
civil origin as to consider that where the natural and 
civil contract was formed it had the full essence of 
matrimony without the intervention of a priest; it 
had even in that state the character of a sacrament, 
for it is a misapprehension to suppose that this inter- 
vention was required as a matter of necessity, even 
.for that purpose, before the Council of Trent. It 
appears from the histories of that council, as well as 
from many other authorities, that this was the state 
of the earlier law, till that council passed its decree 
for the reformation of marriages. The consent of 
two parties, expressed in words of present mutual 
acceptance, constituted an actual and legal marriage. 
Such was the state of the canon law, the 
known basis of the matrimonial law of Europe. 

" 'At the Reformation this country disclaimed, 
amongst other opinions of the Romish Church, the 
doctrine of a sacrament in marriage, though still re- 



THE SHARON DIVORCE CASE. 2>^ -^ 

taining the idea of its being of divine institution in 
its general origin, and on that account, as well as of 
the religious forms that were prescribed for its regular 
celebration as an holy estate, holy matrimony; but it 
likewise retained those rules of the canon law which 
had their foundation, not in the sacrament or in any 
religious view of the subject, but in the natural and 
civil contract of marriage. 

"'The Ecclesiastical Courts, therefore, which had 
the cognizance of matrimonial causes, enforced those 
rules; and amongst others, that rule which held an 
irregular marriage constituted per verba de prcesenti 
not followed by any consummation shown, valid to the 
full extent of avoiding a subsequent regular marriage 
contracted with another person. (Brower, i, 22, 12.) 
A statute passed in the reign of Henry VIII. (32 
Hen. Cap. 38, sec. 2) proves the fact by reciting that 
many persons, after long continuance in matrimony 
without any allegation of either of the parties or any 
other at their marriage, why the same matrimony 
should not be good, just, and lawful, and after the 
same matrimony solemnized and consummated by 
carnal knowledge have, by an unjust law of the bishop 
of Rome, under pretense of a former contract made 
and not consummated by carnal copulation, been di- 
vorced separate, and then enacts that marriages sol- 
emnized in the face of the church and consummated 
with bodily knowledge, shall be deemed good, not- 
withstanding any pre-contract of matrimony not con- 
summated with bodily knowledge which either or both 
of the parties shall have made. But this statute was 
afterwards repealed as having produced horrible mis- 



3S4 LIFE OF DAVID S. TERRY. 

chiefs, which are enumerated in very declamatory 
language in the preamble of the statute 2, Edward 
VI.; and Swinburne, speaking of the prevailing 
opinion of his time, applauds the repeal as worthily and 
in good reason enacted. The same doctrine is recog- 
nized by the temporal courts as the existing rule of 
the matrimonial law in this country in Bunting's case 
(4 Coke, 29). John Bunting, father of the plaintiff, 
and Agnes Adenshall contracted a marrmge per verda 
de prcesenti, and afterwards, on the loth of December, 
1555, the said Agnes took to husband Thomas Tweed, 
and afterwards, on the 9th of July, Bunting libeled 
against her in the Court of Audience. It was de- 
creed that Agnes had been married to Bunting, and 
that the second marriage was illegal and void. In the 
later case of Collins and Jesson (3 Anne), it was said by 
Holt, chief justice, and agreed to by the whole bench, 
that if a contract h^ per verba de prcBsenti it amounts 
to an actual marriage which the very parties them- 
selves cannot dissolve by release or other mutual 
agreement, for it is as much a marriage in the sight 
of God as if it had been in facie ecclesice. But a con- 
tract ^^r verba de fiituro which does not intimate an 
actual marriage, but refers to a future act, is releas- 
able. (2 Salk. 437, Mod. 155.) In Wigmore's case, 
(2 Salk, 438), the same judge said a contract /^r verba 
de prcesenti is a marriage; so is a contract de futuro, 
if the contract be executed and he take her, it is a 
marriage, and they cannot punish for fornication. In 
the Ecclesiastical Court the stream ran uniformly in 
that course. One of the most remarkable is that fur- 
nished by the diligence of De Swabey, on account of 



THE SHARON DIVORCE CASE. 385 

its Striking resemblance to the present case. I mean 
the case of Lord Fitzmaurice, son of the Earl of 
Kerry, Coram Deleg. in 1732. There were in that 
case, as in the present, three engagements in writing. 
The first was dated June 23, 1724, and contained 
these words: "We swear we will marry one another." 
The second was dated July 11, 1724, and was to this 
effect: "I take you for my wife and swear never to 
marry any other woman." This last contract was re- 
peated in December of the same year. It was argued 
then, as here, that the iteration of the declaration 
proved that the parties did not depend upon their first 
declaration, and was, in effect, a disclaimer of it. But 
the court, composed of a full commission, paid no re- 
gard to the objection, and found for the marriage, and 
an application for commission of review founded upon 
new matter alleged was refused by the chancellor. 
Things continued upon this footing till the Marriage 
Act, in the twenty-sixth year of the reign of George 
II., chapter ^^, described by Mr. Justice Blackstone, 
(book I, chapter 15, sec. 3), "an innovation on our 
laws and constitution," swept away the whole subject 
of irregular marriages, together with all the learning 
belonging to it, by establishing the necessity of re- 
sorting to a public and regular form, without which 
the relation of husband and wife could not be con- 
tracted. . . 

"Ttmay be convenient to consider, first, whether 
the present case is a case of promise, or of present 
declaration and acknowledgment. It will be con- 
venient to doso in two respects. The first convenience 
attending it is that the fact itself is determinable 



SS6 LIFE OF DAVID S. TERRY. 

enough upon the face of written existing instrumeiits. 
It is not to be gathered from the loose recollections of 
loose verbal declarations, not guarded either in the ex- 
pressions of those who made them or in the memory 
of those who attest them. The second convenience 
resulting from it is that a large portion of the inquiry 
into the other points of the case may in a degree be 
rendered superfluous, for if these papers contain mere 
promises, then have I to consider only the law of 
promise as referable to cases accompanied or unac- 
companied by a copula, leaving out entirely the law 
that respects acknowledgments and declarations. On 
the other hand, if they are to be considered as ac- 
knowledgments, then the law of promise may be dis- 
missed, except, perhaps, sometimes to be introduced 
incidentally for purposes of occasional illustration. 
Whether they are to be considered as promises or dec- 
larations must be determined upon the contents of the 
instruments themselves, on such a view as the plain 
meaning of the words imports, and upon the infor- 
mation of their technical meaning as communicated 
by the Scotch lawyers, for it is possible that they may 
be subject to a technical construction different from their 
obvious meaning. This is the marriage settlement of 
Scotland. The words of the stipiilatio sponsalia are 
present declaratory words; the parties mutually accept 
each other, but the engagements they enter into are 
always technically considered to be mere promises de 
futicro. Those who are conversant in the books of 
the canon law will recollect the extremely nice dis- 
tinctions which that law and its commentators have 
made between expressions of a very similar import in 



THE SHARON DIVORCE CASE. ^Sy 

their obvious meaning, as constituting contracts c/e 
pTCBsenti, or only promises de futuro. The first paper 
is without date, and is merely a promise. Mr. Dai- 
ry mple promises to marry Miss Gordon as soon as it 
is in his power, and she promises the same; it is super- 
scribed by both their names, is indorsed "a sacred 
promise," and is left in her possession. It is pleaded 
to be the first that was executed by them, and it is 
highly reasonable to presume that it was so, for no 
person, I think, would be content to accept such a paper 
as this, after having received the papers which follow, 
marked 2 and 10. The paper marked No. 2 is dated 
on the twenty-eighth day of May, 1804, and con- 
tains these words: "I hereby declare Johanna Gordon 
is my lawful wife; and I hereby acknowledge John 
Henry Dalrymple as my lawful husband." I see no 
great difference between the expressions declare and 
acknowledge. The words properly enough belong to 
the parties by whom they are respectively used, and 
are, perhaps, not improperly adopted to the decorums 
of such a transaction between the sexes. No. 10 is a 
reiterated declaration on the part of Mr. Dalrymple, 
accompanied with a promise " that he will acknowledge 
Miss Gordon as his lawful wife the moment he has it 
in his power." She makes no repeated declaration, 
but "promises that nothing but the greatest necessity 
(necessity which . . . situation alone can justify) 
shall ever force her to declare this marriage." It is 
signed by him and by her, describing herself J. Gordon, 
now J. Dalrymple, and it is dated July 14, 1804. Both 
the papers are inclosed in an envelope, on which is 
inscribed " sacred promises and engagements." There 



388 LIFE OF DAVID S. TERRY. . 

are promises and engagements that would satisfy these 
terms, independent of the words which contain the 
declaration of the marriage. At the same time it is 
to be observed that the words " promises and engage- 
ments" are not improperly applied to the marriage 
vow itself, which is prospective in its duties, which en- 
gages for the performance of future offices between 
the parties till death shall part them, and to which, in 
the words of our liturgy, it plights their troth, or, in 
more modern language, pledges their good faith for 
that future performance. I feel some hesitation in ac- 
ceding to the remark that the paper marked No. 2 is 
at all weakened or thrown loose by the mere engage- 
ment of secrecy, which seems to be the principal if 
not the sole object of the latter paper, though Mr. 
Dalrymple has thrown in a renewed declaration of his 
marriage. That reiterated declaration, though ac- 
companied with a promise of secrecy, cannot, upon 
any view of the case, be considered as a disclaimer of 
the former. An engagement of secrecy is perfectly 
consistent with the most valid, and even with the most- 
regular marriages. It frequently exists even in them 
for prudential reasons, from the same motives it 
almost always does in private or clandestine mar- 
riages. It is only an evidence against the ex- 
istence of a marriage when no such prudential rea- 
sons can be assigned for it, and where everything 
arising from the very nature of marriage, calls for its 
publication, 

" 'Such is the nature of these exhibits, first, a 
promise; secondly, that promise merged in the direct 
acknowledgment of the accomplished fact; thirdly, a 



THE SHARON DIVORCE CASE. 389 

renewed admission of the fact on his side, with a 
mutual engagement of secrecy, till the proper time for 
disclosure should arrive. 

" 'In these papers as set up by Miss Gordon, resides 
the constitution, as some of the gentlemen who have 
been examined call it, or as others of them term it, 
the evidence of the marriage, for it is a matter of dis- 
pute between these learned persons whether such 
papers, when free from all impeachment, are constitu- 
ents or merely evidence of marriages. It appears to 
be a distinction not very material in its effects, because 
if it is to be considered that such papers so qualified 
are only to be treated as evidence, yet if free from all 
possible impeachments on the grounds on which the 
law allows them as evidences to be impeached, they 
•make full faith of the marriage, they sustain it as 
effectually as if, according to other ideas, they directly 
constituted it; they have then become presumptions 
juris et de jure, which establish the same conclusion, 
although in another way. 

" 'With regard to decided cases I must observe, 
generally, that very few are to be found in any ad- 
ministration of law in any country upon acknowledged 
and settled rules. Such rules are not controverted by 
litigation; they are therefore not evidence by direct 
decision; they are found in the maxims and rules of 
books of text law. It would be difficult, for Instance, 
to find an English case in which it was directly de- 
cided that the heir takes the real and the executor the 
personal estate; yet though nothing can be more certain, 
it is only incidentally and obiter that such a matter can 
force itself upon any recorded observation of a court. 



390 LIFE OF DAVID S. TERRY. 

Equally difficult would it be to find a litigated case in 
the canon law establishing the doctrine that a contract 
per verba de prcBsenti is a present marriage, though 
none is more deeply radicated in that law. 

" 'I think that, being compelled to pronounce a judg- 
ment upon this point, I am bound to say that I enter- 
tain as confident an opinion as it becomes me to do, 
that the rule of the law of Scotland remains un- 
shaken, that the contract de prt^senti do^s not require 
consummation in order to become "very matrimony;" 
that it does ipso facto et ipso jure, constitute the rela- 
tion of man and wife. . . . What was the state 
of mind and conduct of the lady during this period of 
time? It is not to be presumed, from the contents of 
his letters, that she was either indifferent or repulsive, 

" ' This imputation, indeed, that has been thrown 
upon her is of a very different kind, that she was an 
acute and active female, who, with a knowledge of the 
laws of the country, which Mr. Dalrymple did not 
possess, was endeavoring quacunque via data, to en- 
gage him in a marriage. To this marriage she has 
inflexibly adhered, and now stands upon it before this 
court. So that whatever might be the real state of 
her affections toward this gentleman (which can be 
known only by herself), this, at least, must be granted, 
that she was most sincerely desirous of this marriage 
connection, which marriage connection both of them 
perfectly well knew could not be publicly and regularly 
obtained. Taking, then, into consideration these dis- 
positions of the parties, his desire to obtain the enjoy- 
ment of her person on the one hand, and her solici- 
tude to obtain a marriage on the other, which, after 



THE SHARON DIVORCE CASE. 391 

the delivery of such instruments, she knew might at 
all events be effectually and honorably obtained by 
the mere surrender of her person, what is the probable 
consequence? In this part of the island the same 
circumstances would not induce the probability of a 
private surrender because a public ceremony being 
here indispensably required, no young woman acting 
with regard to virtue and character and common pru- 
dence, would surrender her person in a way which 
would not only not constitute a marriage, but would, 
in all probability, defeat all expectations of such an 
event. 

" 'In Scotland |he case is very different, because in 
that country, if there are circumstances which require 
the marriage to be kept a secret, the woman, after 
such private declarations passed, carries her virgin 
honors to the private nuptial bed, with as much purity 
of mind and person, with as little violation of delicacy, 
and with as little loss of reputation, as if the matter 
was graced with all the sanctities of religion. It is 
in vain to talk of criminality, and of grossness, and of 
gross ideas. In such a case there are no other ideas 
excited than . such as belong to matrimonial inter- 
course. 

"'It is the "bed undefiled," according to the no- 
tions of that country; it is the actual ceremony as 
well as the substance of the marriage. It is the con- 
version of the lover into the husband, transit in mat- 
rimonium, if it was not matrimonium before.' 

"I read from page 522: 'Little now remains for me 

but to pronounce the formal sentence of the court, and 

it is impossible for me to concede from my own ob- 
26 



i 

392 LIFE OF DAVID S. TERRY. 

servation the distress which that sentence may even- 
tually inflict upon one or perhaps more individuals, but 
the court must discharge its public duty, however 
painful to the feelings of others and possibly to its 
own, and I think I discharge that duty in pronouncing 
that Miss Gordon is the legal wife of John William 
Henry Dalrymple, Esq., and that he, in obedience 
to the law, is bound to receive her home in that char- 
acter, and to treat her with conjugal affection, and to 
certify to this court that he has so done by the first 
session of the next term.' 

"In that case there was an injunction of secrecy 
which was kept for four years. I have read that case 
extensively, because in many of its circumstances it is 
exactly similar to the one at the bar. Now, I say 
that no case can be found in any book of the law — 
no text can be found in any law writer — which goes to 
the effect that a promise of secrecy avoids a marriage 
or renders it less valid than it would be without it. 
It may — if there is no reason given for the observance 
of secrecy — it may somewhat affect the proof It 
may require stronger proof of the actual contract than 
if no such secrecy was indulged." 

After citing the case of Dr. Hamilton and Mary 
Clark, of Edinburgh, Mr. Terry says: — 

"It is necessary in all actions for divorce to estab- 
lish a valid marriage; and the defendant having de- 
nied in the answer the o^enuineness and due execution 
of the written contract, that question was the main 
issue on the trial, and this issue was found in favor of 
the plaintiff. 

"It is not contended by any of the counsel for the 



THE SHARON DIVORCE CASE. 393 

defendant that the paper set out in the findings would 
not be valid and binding if it did not contain an agree- 
ment by one of the parties that its existence should 
not be made known for two years, without the consent 
of the other party to the contract. 

"But it is contended that this agreement of secrecy 
is violative of the policy of the law, and renders the 
contract void. 

" No authority has been produced in support of 
this proposition; and 1 think that no authority can be 
found which declares that a contract otherwise legal 
and valid is rendered void by the fact that the parties 
agreed that its existence should be kept secret for a 
specified time, or until both parties consented to its 
publication. 

"The argument is that the contract of marriage is 
one in which the public is interested; *in which public 
morality and decency is concerned,' and which the law- 
making power has always undertaken to control and 
direct and govern by legislative conditions; and that 
as the State has provided for the obtaining of a mar- 
riage license, and the making and recording of a cer- 
tificate of marriage, the policy of the law requires that 
marriages should be public; that there should be record 
evidence of the fact, and that every agreement to keep 
such contracts secret is against the policy of the law 
and renders the contract void. 

"I do not understand that an agreement to do a law- 
ful act is against public policy because it is not executed 
in the form prescribed by law. I understand that a 
contract against the policy of the law is a contract to 
do some act prohibited either expressly or impliedly 



394 LIFE OF DAVID S. TERRY. 

by law, or to abstain from doing something required 
by law. That is the object, not the form of the con- 
tract, which makes it void as against the policy of the 
law. (Civil code, section 1596.) 

"A contract of marriage between two individuals of 
opposite sexes, capable of contracting marriage with 
each other, is not opposed to the policy of the law. 
On the contrary, such contratts are favored by the laws 
of all fcivilized countries. 

" If it be admitted that the agreement on the part of 
the plaintiff not to make known the existence of the 
contract for two years without the consent of the de- 
fendant is against the policy of the law, this fact does 
not affect the validity of the marriage. 

" The contract found by the court below to have 
been executed by the parties had two distinct objects: 
one, the entering into the marriage relation; the 
other, the keeping ^ecret that relation for two years. 

" 'The object of a contract is the thing which it is 
agreed on the part of the party receiving the consider- 
ation to do or not do.' In consideration of the agree- 
ment of defendant to take plaintiff as his wife, plaintiff 
agreed to take the defendant as hei husband, and not 
to make known the contracts or existence of the writ- 
ing for two years. 

"One of the objects of this contract was lawful. It 
was lawful and not against the policy of any law for 
the plaintiff and defendant to enter into the marriage 
relation with each other. If we admit that the second 
object, the keeping the relation secret, was against 
public policy, what is the result? This question is 
answered by the statute law of California; — 

" 'When a contract has several distinct objects, of 



THE SHARON DIVORCE CASE. 395 

which one at least is lawful, and one at least is unlaw- 
ful, in whole or in part, the contract is void as to the 
latter, and valid as to the rest.' 

*' 'An agreement to keep the marriage secret will 
not invalidate it, neither necessarily involve in doubt 
the proofs of its existence.'" 

In this extraordinary argument. Judge Terry cited 
the laws that have existed in regard to marriage, and 
every case of record since the reformation, and it is 
one of the most complete treatises on the question of 
marriage ever produced. It occupies one hiindred and 
seventy-eight pages of a brief. 



CHAPTER XLIV. 

Terry's Estimate of Field — The Heydenfeldt 
Interview — Heydenfeldt's Denial — Condi- 
tion OF Terry's Mind after Imprisonment — 
Shadowed by Paid Detectives in the Secret 
Service. 

The intimation given in Judge Terry's letter to 
Judge Heydenfeldt- that Field probably wanted to get 
even on him by the excessive imprisonment for his re- 
fusal to assist him in his presidential aspirations, pro- 
voked a question of veracity between the two gentle- 
men by the persistence with which Judge Field denied 
having anything to do with Terry, or that he was seek- 
ing the indorsement of the Democracy of the State 
when the convention assembled at Stockton in 1884. 
Terry's letter to a friend at the time gave the facts of 
the case, and no such letter would ever have been 
written had not the facts existed, as there was no oc- 
casion for any personal enmity between him and Field 
at the time it was written. To this friend he wrote as 
follows: — 

"In March, 1884, I was called, by invitation, at 
Judge Heydenfeldt's office, and he stated that he had re- 
ceived a letter from Judge Field, who was anxious to 
receive the presidential nomination, and thought he 
could do so if he had the indorsement of California in 
(396) 



FIELD AND HEYDENFELDT. 397 

the State convention; that if nominated he could carry- 
New York; that he had been informed by Californians 
in Washington that I was the only man who could 
secure for him the delegation; also, that Field believed 
that I wanted political recognition, and that if he 
(Field) was elected he would give me anything I 
desired. I replied that Judge Field and his friends 
very much overrated my influence; that I could not 
give him the California delegation; and if I could I 
would not, as his judicial record would absolutely 
prevent my giving him my support; that no place in 
the records of his decisions could it be found that he 
had ever given a judgment for a poor man against a 
rich one, no matter what the evidence." 

These men having been associated on the Supreme 
Bench, it was very natural that they should confer 
with one another on matters where either party was 
personally interested, and the fact that Judge Field 
did present his claims to that convention for recog- 
nition, and that his advocates and supporters were 
snubbed at every point by the anti-monopoly element, 
led by Delmas of San Francisco, and backed by Judge 
Terry, who was not a delegate, is proof sufficient that 
the interview with Heydenfeldt could not be disputed. 
The question came up at the time of Terry's death, 
and having been removed beyond reach of evidence. 
Judge Heydenfeldt, willing to do homage to a living 
power, or suffering by softening of the brain, denied 
the interview. It is needless to say, however, that 
there are but few men living who do not believe the 
staten;ent made by Judge Terry. In the interview, 
Terry further said, as he testified to an attorney at 



398 LIFE OF DAVID S. TERRY. 

Fresno, Hon. L. B. McWhirter, that he "considered 
Field, in ability and corruption, the equal of Francis 
Bacon, and that it would be a sad day for the country 
if such a man were ever President." 

There is no question but that Judge Field believed 
that Judge Terry had said just what he was credited 
with having said, and that his pride and ambition were 
wounded by it, but whether this thought entered into 
the degree of punishment inflicted for contempt is a 
question of doubt. 

After his term of imprisonment was ended, Judge 
Terry made his residence in Fresno, where his inter- 
ests mostly were, and where he had a comfortable 
home. His legal business was confined mostly to the 
San Joaquin Valley counties, and where he was best 
known he was most highly respected. He was almost 
invariably retained as an attorney on all important 
cases, but more especially where large interests were 
involved. He was not a criminal lawyer, and did not 
care to engage in any criminal practice, for the reason, 
as he often expressed it, that he hated to defend a man 
who was guilty, and there were but few of any other 
kind brought before the courts. He had invested 
largely in real estate in connection with others and had 
before him a prosperous luture. He finally formed a 
copartnership in the legal profession with W. D. 
Grady and Herbert Z. Austin, the former having been 
associated with him for several years previous to his 
imprisonment for contempt. He continued in his 
practice apparently indifferent to the past and its ex- 
citing scenes, but it was noticeable that he was not the 
same man in his associations with business men. At 



FIELD AND HEYDENFELDT. 399 

all times and on all occasions in former years he was 
considered the soul of honor; a man whose word was 
as good as his bond, and whose judgment in matters 
of business was never at fault. Some of his most 
ardent friends and admirers, who were close to him in 
business, began to suspect that his mind was too heavily- 
charged with the thought of the wrong and indignity 
inflicted upon him, and understanding fully the con- 
dition of his social relations, tried to reason with him. 
A banker in Fresno, who knew him well, and who 
placed a proper value upon his integrity, approached 
him with the intention of securing a promise from him 
not to seek an altercation with Field. He said: — 

"Judge, this matter is all over with now. You have 
not suffered any in the eyes of your friends. You 
have fine prospects ahead and valuable property to 
take care of. Why not let the past go and forget it as 
much as you can. You know the people are your 
friends, and that they have no sympathy with Judge 
Field. Let the matter rest where it is and don't seek 
an encounter with any of the judges." 

Terry's answer was: "I do not intend to injure 
Field bodily, but if the opportunity presents itself, 
while I shall not seek it, I shall slap him in the face or 
horsewhip him. I have made up my mind to that and 
nothing can alter my determination." This was merely 
a repetition of what he had threatened on other oc- 
casions, and it was useless for any man to try to exact 
a promise from him of milder treatment. In several 
small business transactions he became involved in 
trouble, and on one occasion had a personal encounter 
with a business man in a dispute over a small bill con- 



400 LIFE OF DAVID S. TERRY. 

tracted by his wife. He was not in the habit of con- 
tracting small debts, and, in fact, there was nothing 
small about him. On several occasions he made repre- 
sentations in regard to business matters which proved 
incorrect and which surprised him when made ac- 
quainted with the facts, but, with the exception of 
one or two minor instances, he was always prompt in 
correcting them. This change in his dealings with 
his fellow-men was foreign to his nature, and pointed 
unmistakably to the fact that he was laboring under a 
strong mental pressure of some kind, and the Alameda 
County Jail, and the six months' imprisonment for con- 
tempt at the instance of Judge Field was the only 
solution. 

During the six months following his release he had 
conducted many important cases before the courts, and 
instead of injuring his business, it was largely in- 
creased, and the only cloud that was hanging over his 
head, aside from the judicial indignity, was the social 
ostracism that seemed to continue, and would yield to 
no kindly or beneficent act of his own. He did not 
cease to perform acts of kindness to the poor, and 
many can testify to his generosity. One woman who 
was too poor to pay a lawyer, and who had been re- 
fused counsel by others, went to Judge Terry and re- 
lated her case. She wished to be divorced from a 
worthless husband. She had been refused counsel, and 
he said to her, " I will attend to your case, and if 
you need any money I will let you have it." He se- 
cured her a divorce and also her prayers. It seemed 
to liofhten his burden to take burdens from the shoul- 
ders of others, but he never ceased to brood over the 



SHADOWED BY DETECTIVE. 4OI 

"spite work" which he denominated the act of Judge 
Field. 

On one occasion, as Judge and Mrs. Terry were on 
their way from Los Angeles, where he had been at- 
tending the session of the United States Circuit Court, 
they happened upon the same train on which Judge 
Lorenzo Sawyer was. During the trip, Mrs. Terry 
assaulted Judge Sawyer by pulling his hair. This act 
was witnessed by one of the superior judges of Los 
Angeles, who was a passenger on the train, and it was 
reported to the authorities at Washington and noted 
in connection with other threats which had been made 
against Field and Sawyer, 

These threats having been presented by responsible 
parties, and no denial having been made, constituted 
the sum and substance of the measures taken to protect 
the members of the Federal judiciary from any injury, 
and had this been all there would have been no such 
tragedy as that which resulted. A deep-planned and well- 
organized scheme was concocted in some corner of the 
world to make it a finality. Detectives were employed 
by someone through a San Francisco agency to shadow 
the Terrys in secret. One of these detectives visited 
Fresno in the month of June, 1889. He telegraphed 
from Sacramento to John A. Barker, city marshal of 
Fresno and chief of police, inquiring if the Terrys 
were there, and signed his name "George Osborne." 
As Judge Terry's services were in constant demand 
all over the State, Mr. Barker supposed it was from 
someone who desired to retain him in a suit at law, 
and he answered the dispatch, stating that Terry was 
at home. Two days thereafter the marshal was ap- 



402 LIFE OF DAVID S. TERRY. 

proached by a young man, who was a stranger to him, 
who inquired if he was the chief of poHce, and being 
told that he was, he asked for a consultation with him 
in private. They went into a room in the rear of a 
saloon near by and he informed Mr. Barker that he 
was the person who telegraphed him with regard to the 
Terrys, that his real name was Henry Felton, and 
that he was a secret detective under the orders of Fin- 
negass' Detective Agency of San Francisco for the 
purpose of shadowing the Terrys, and he desired to 
enlist his services. "There's big money in it," said 
he. Mr. Barker informed him that he was a friend of 
Judge Terry's and he must decline to aid him in any 
such business, but as he was professionally bound he 
would not divulge the nature of his business nor the 
cause of his presence. 

The young man made his headquarters at the 
Grand Central Hotel and was very diligent in visiting 
the neighborhood of the Terry residence daily. He 
seemed to have plenty of money, and spent it freely. 
When Terry would take the train for any of the 
neighboring towns, which he frequently did to attend 
the various courts, Felton would take the same train, 
always returning when Terry did. He occasionally 
drank pretty freely, and would become rather com- 
municative. On one occasion, while riding out with 
the marshal, he said that Judge Terry was "coppered'' 
at every point, and that if he ever made any violent 
demonstrations he would be killed; or, as he expressed 
it in slang style, "Terry wouldn't be in it." 

The evening before the murder. Barker met the 
detective and said: "Young man, you have got a 



SHADOWED BY DETECTIVES. 4O3 

ticklish job on your hands. Do you know that if 
Judge Terry found out that you were here dogging 
his footsteps," following him around, and telegraphing 
his movements, he would come down and beat you to 
death some morning? " 

"No, he wouldn't," answered Felton. "Whenever 
I am in Judge Terry's presence, I have my hand on 
my gun. All of us are fixed for him, and if he ever 
makes a break we will take no chances." 

Felton was at the depot the night Mr. and Mrs. 
Terry took the train, but he had been drinking, and 
did not see them get aboard. The next morning the 
marshal was the first one to notify him of the tragedy. 
He was perfectly astounded and did not believe it, 
but when assured of the fact, he said, "My God, I 
will lose my position!" 



CHAPTER XLV. 

Measures Taken to Protect the Judiciary — The 
Attorney-General's Letter to Marshal 
Franks — Terry to be Kept in Ignorance — 
Field and Terry Meet at Lathrop — Terry 
Slaps Him in the Face — Field's Bodyguard 
Kills Terry — He Is Arrested and Taken to 
Stockton. 

In July, 1889, Hon. Stephen J. Field, of the 
United States Supreme Court, again visited the Pa- 
cific Coast to hold a term in the Ninth Circuit. His 
friends in the East advised him not to do so, but he 
persisted in his determination, although the evidences 
had accumulated in the department of justice that 
Judge Terry had threatened on several occasions to 
assault him, and that even his life was in danger. 
There were several charges against Judge Terry to 
be disposed of, and he must necessarily come in con- 
tact with him in their disposition. In the meantime, 
the political complexion of the administration had 
been changed, and Wm. H. Miller was the attorney- 
general. The previous conduct of Judge and Mrs. 
Terry had become familiar to him through the letters 
and affidavits on file, and he was a stranger to the 
true character of the man. All he knew was of a 
violent character, and he was only impressed with the 
(404) 



PROTECTION TO JUDGE FIELD. 405 

evidence that he was a desperado. He was made 
aware of the fact that Terry never made idle threats, 
and was fully aware of the fact that it was his duty to 
protect the judiciary. Accordingly he wrote the fol- 
lowing letter to the United States marshal: — 

Department of Justice, ] 
Washington, D. C, April 27, 1889. J 

John C. Franks, U. S. Marshal, San Francisco, Cal. — 
Sir: The proceedings which have heretofore been had in connection 
with the case of Mr. and Mrs. Terry in your United States Circuit 
Court have become matters of notoriety, and I deem it my duty to 
call your attention to the propriety of exercising unusual caution in 
case further proceedings shall be had in that case, for the pro- 
tection of his honor. Justice Field, or whosoever may be called 
upon to hear and determine the matter. Of course I do not 
know what may be the feelings or purposes of Mr. and Mrs. Terry 
in the premises, but many things that have happened indicate 
that violence on their part is not impossible. It is due to the 
dignity and independence of the court and the character of its 
judges that no effort on the part of the government shall be 
spared to make them feel entirely safe and free from anxiety in 
the discharge of their duties. 

You will understand, of course, that this letter is not for the 
public, but to put you on your guard. It will be proper for you 
to show it to the district attorney, if deemed best. 

W. H. Miller, Attorney- General. 

Letters passed between the United States district 
attorney and the attorney-general, which finally re- 
sulted in an order instructing the United States mar- 
shal to provide a bodyguard to protect Justice Stephen 
J. Field during his soj'ourn on the Pacific Coast from 
threatened assaults and insults by Judge Terry. 
Sufficient evidence had accumulated to make these 
precautionary measures necessary, and the greatest 



4o6 LIFE OF DAVID S. TERRY. 

secrecy was observed in order to prevent Terry from 
being provided with any knowledge of their existence. 
The detectives were carefully distributed and in- 
structed to make accurate observations of Terry's 
movements, and in case of any demonstrations, to see 
that he was placed beyond the power of doing any 
harm to the distinguished jurists. 

In a thorough and impartial investigation of this 
important matter, there can be found no record of any 
measures having been taken to advise Judge Terry 
of the fact that the contemplated assault would be 
considered a violent breach of the peace, and one 
which the law would not recognize as justifiable under 
the circumstances. No action was taken to protect 
Justice Field by staying the hand of the avenger in 
a manner prescribed by law, such as Justice Field 
would have intervened between Terry and Broderick 
had he been present at the time of the duel. It will 
always be a question that, if there was sufficient in- 
formation in the way of evidence to provide against 
an attack, and there probably was, was not that same 
evidence sufficient to stay the hand by having it 
bound by the legal process provided by the statutes? 
It would be an insult to the judiciary to charge them 
with ignorance in such matters, and not to do so can 
only be classed under the broad charge of criminal 
negligence. The fact that a system of espionage was 
instituted, and armed forces placed in ambush with 
orders not to divulge their presence or their intentions 
and to allow no chances to be taken, has upon its face 
a most remarkable species of humane engineering by 
the authorities in their strides to a "higher civiliza- 



PROTECTION TO JUDGE FIELD. 4O7 

tion." It has all the veins, dips, angles and spurs 
of cunningly-conceived and well-planned conspiracy 
against the life of a man whose presence was a con- 
stant menace to some high-handed scheme to do a 
criminal act. Justice Field seemed to be unable or un- 
willing to suggest the remedy, although he was per- 
sonally aware of the desperate character of jL:dge 
Terry in combating with the power that had placed 
its heel upon his neck. It was not merely a matter of 
record; it was one of personal knowledge, and having 
the power and the authority to take the necessary 
legal steps, which the evidence would have justified 
him in doing, he should have done so and protected 
himself from humiliation and saved a human life. 
That other and more potent influences than that of 
care for humanity and peace were at work, can only 
be accepted as a correct solution of the question. 

In the absence of all legal safeguards, and in con- 
formity with the wishes of those opposed to Judge 
Terry and the orders of the attorney-general, Marshal 
Franks appointed David Neagle a deputy United 
States marshal, and assigned him to the position of 
bodyguard to Justice Field during his sojourn on the 
Pacific Coast. Neagle had the reputation of being a 
rash, brave man, having figured as a hero in Arizona 
among the "toughs" of that Territory who have 
given it an unenviable notoriety. He had also gained 
some notoriety in San Francisco arr^ong the politicians. 
He accepted the position and accompanied Justice 
Field to Los Angeles on the tenth day of August, 
1889, where Field held court in connection with Judge 
Ross. On the 14th of August, Field left Los Angeles 
27 .. 



408 LIFE OF DAVID S. TERRY. 

for San Francisco with N eagle. As the train passed 
Fresno Judge and Mrs. Terry went aboard for the 
purpose of being present at the hearing of the cases 
against them in the Circuit Court. They were not 
aware of the presence of Judge Field on the train, 
believing he had passed through the day before. The 
train passed Fresno at 2:30 a. m., and there being no 
vacant room in the sleeping car, Judge and Mrs. 
Terry took seats in a regular passenger car. Neagle 
was on the alert and saw the Terrys when they took 
the train. He immediately informed Justice Field of 
the fact, and when the train arrived at Merced he 
telegraphed for an officer to be on hand in case trouble 
should occur. 

When Judge Terry was at the depot at Fresno just 
before the train arrived, his former partner, W. D. 
Grady, handed him a pistol, saying, "Take this, judge, 
you may need it." "No," said the judge, "I have no 
use for a pistol; I never carry one." "Well," said 
Grady, "I want you to take it; you may need it, for I 
feel as though I would never see you again." Terry 
took the pistol and gave it to his wife just as they 
stepped aboard the train. 

At Modesto, Sheriff R. B. Purvis took the train, 
but not at the suggestion of Neagle, or having in his 
keeping the fact of the presence of the parties upon 
whom so much anxiety was centered. The train 
stopped at Lathrop for breakfast, and Justice Field, 
although having been made aware of the presence of 
Judge and Mrs. Terry, and having been warned by 
Neagle, who proposed having breakfast served in the 
buffet, concluded to take breakfast at the station, re- 



THE LATHROP TRAGEDY. 4O9 

marking that he had eaten at the station before and 
had gotten a good meal. 

He left the car, and, in company with his body- 
guard, was taken to a seat at a table rtear the center 
of the dining room, facing toward the door. The 
dining room is quite large, having three rows of five 
tables in each row. Field occupied a chair at the 
corner of the third table in the middle row, and Neagle 
next on his left. Soon after they were seated Judge 
and Mrs. Terry entered, and the steward showed 
them to seats at a table at the rear end of the dining 
room in the same row. In going to this table they 
passed down the aisle in front of Justice Field. Terry 
did not observe Field as he passed, but Mrs. Terry 
saw him, and, without taking a seat, she spoke to her 
husband in an undertone and, turning quickly about, 
passed out of the dining room toward the cars. 

Observing these movements T. M. Stackpole, one 
of the proprietors of the station eating house, knowing 
all the parties and the bitter feud existing between the 
Terrys and Justice Field, and also the vindictive and 
irrepressible character of Mrs. Terry, walked to where 
Judge Terry was sitting, and said: "Mr. Terry, I hope 
Mrs. Terry will not be so indiscreet as to create a dis- 
turbance in the dining room." 

Judge Terry, who was up till this time unconscious 
of the presence of Justice Field, inquired what he 
meant. 

"Justice Field is in the room," he replied, "and I 
feared Mrs. Terry would create a disturbance, as she 
has gone out to the car for some purpose. Do you 
think she will do so?" 



410 LIFE OF DAVID S. TERRV. 

"I think it very likely," replied Terry. "You had 
better watch her at the door and prevent her from 
again entering the room." 

Mr. Stackpole did as Terry suggested, and placed 
two men at the door to intercept Mrs, Terry, should 
she again seek to enter the dining room, and as he 
walked to his place at the door, leading from the 
dining room to the barroom, Judge Terry arose from 
his seat and walked toward the door as though he 
were following his wife, but down the other aisle to 
the rear of Judge Field. His cool and deliberate 
manner was such that no one supposed that he medi- 
tated any disturbance, and even"NeagIe, who was on 
the alert, did not realize that he was about to make 
an assault on Field. He passed Neagle, but when he 
arrived at a point immediately behind Field, he 
stopped, turned about, and stooping down over him, 
deliberately struck him on the right cheek with the 
palm of his hand, and then quickly struck with his left 
hand, which hit Field on the side of the head, as he had 
turned his head to look up. Neagle was quick to act 
and without rising from his seat, drew his pistol with 
his left hand, holding the barrel in his right to be sure 
of his aim, shot Terry, inflicting a mortal wound. He 
then arose and fired a second shot accompanied with 
the word " Hold," and the ball passed through his left 
ear as he was in the act of falling to the floor. The 
first shot had done its deadly work, and yet the strong, 
robust frame did not yield until Terry had raised his 
arm with clenched fist and an avenging expression on 
his features, to strike down the assassin, but his power 
had gone with the bullet that had entered his heart. 



THE LATHROP TRAGEDY. 4I I 

Neagle had no time to argue the case or to warn 
Terry that he was an officer who had been hired to 
kill him, as the report was and as the records have it. 
The moments were too precious and the chances too 
great. There was no time for thought and but little 
time for action. It was a supreme moment for him 
and he utilized it. 

Terry fell to the floor with one leg doubled under 
him, and expired in less than two minutes. While 
the sound of the pistol shots were ringing there was a 
crowd at the door wrestling with Mrs. Terry, in their 
attempts to take a satchel from her, and in doing 
so it was accidentally opened and a pistol dropped from 
it to the floor. All was confusion. There were 
about fifty persons in the room at the time eating 
breakfast, one-half of whom were women, and all 
striving to get out at the doors. 

As soon as Judge Terry fell to the floor, Sheriff 
Purvis, who was in the adjoining room and had wit- 
nessed the shooting, came in and stooped over the 
body. He saw he was dying, and he stepped aside as 
Mrs. Terry came rushing to the body of her husband, 
kneeled over it and raved piteously. She besought 
him to speak to her and he opened his eyes and their 
lips met in a last kiss. She turned about and said, 
"They have killed the only friend I had on earth," 
and called upon those present to avenge his death, 
charging Field and Neagle with the crime of murder. 

A few had gathered about Neagle, who stood at^the 
west end of the room, with the smoking pistol in his 
hand, declaring that he was a United States officer. 
*T killed him and I did no more than my duty," he 



412 LIFE OF DAVID S. TERRY. 

said, "and I defy anybody to touch me." " Yes," 
said Field, "that man assaulted me, and my officer 
shot him." 

This expression from the venerable-looking gentle- 
man assigning his official position, attracted the atten- 
tion of the people, who had become excited at the 
killing of a human being, and allayed somewhat the 
feeling that existed that Neagle should be arrested, 
and being for the first time cognizant of the fact that 
he was an officer under special orders, they ceased 
their efforts to arrest him. There was one man 
there, however, who appreciated the fact that, no 
matter whether authorized by the highest tribunal in 
the land, or the highest authority, a man had been 
killed, and whether justifiable or not, the arrest should 
be made, in justice to the man who committed the 
deed as well as in the eyes of the law. 

While these scenes were transpiring, Mrs. Terry 
was dividing her attention between sorrowing over 
the dead body of her husband and seeking to provoke 
a mob spirit for vengeance on Field and Neagle. In 
the midst of the most intense excitement, Justice 
Field and Deputy Marshal Neagle passed out of the 
dining room and entered their car and were locked 
in by the conductor. Seeing this. Sheriff Purvis 
knocked at the door of the car, and informing them 
of his official standing, he was admitted. In demand- 
ing his arrest Field objected, but Neagle surrendered 
himself, and before the train pulled out, Constable 
Walker, of San Joaquin County, who had just ar- 
rived, was admitted. A hasty consultation was held, 
and it was thought best, owing to the excitement at 



THE LATHROP TRAGEDY. 413 

the Station, to take Neagle to Tracy, a station ten or 
twelve miles west, and from there to Stockton, by 
private conveyance. 

Judge Terry's body lay upon the floor during all 
this time, visited only by his wife and a few who were 
his friends while in life, and after the train moved off 
toward San Francisco, Mrs. Terry kneeled down by 
his side and yielded to her anguish of heart in the 
most tender and passionate language. She realized to 
its keenest depths the extent of her utter loneliness in 
view of all that had transpired during the past two 
years, and as though directing her thoughts in language 
to some particular person, she said: — 

"Oh, if I could be in your place, my love!" she 
cried. "Oh, if I could be here in your place! If it 
was only I instead of you, who h:ive so many to love 
you. Sweet, sweet lips, and he died for me. My 
God, my God, and he felt it so, too, to think that he 
was thrown into jail for protecting his wife. And if 
he hadn't protected me you would have called him a 
coward. If he could only have been sick, and you'd 
have had the satisfaction of caring for him. He was 
such a good, kind husband. Nobody ever had a better; 
nobody ever had a more loving husband. Oh, how 
can I give him up — rny love! O my love, may God 
take your soul and protect you, and take you to his 
heavenly home!" 

At this supreme moment of her anguish she no 
doubt felt the force of the remark that "when she 
married David S. Terry she sealed his death Warrant," 
as was said by one of his old-time and most intimate 
friends. The Sharon divorce case was the dark valley 
of the shadow. 



414 LIFE OF DAVID S. TERRY. 

David Neagle was taken from Tracy to Stockton by 
Constable Walker, and he was there placed in jail for 
safe keeping until future proceedings could be had to 
determine his status as an actor in the exciting drama. 



CHAPTER XLVI. 

Terry's Body Taken to Stockton — Excitement 

AMONG THE PeOPLE FaLSC AlARMS — A QuiET 

Funeral — Justice Field Charged with Murder 
— His Armor-bearep — Short Sketch of the 
Life of David N eagle. 

Judge Terry's body was taken charge of by the 
coroner of San Joaquin County and taken to Stockton 
on the same day, and Mrs. Terry accompanied it. Al- 
though the fame and merits of the man would have 
suggested that it lay in state, the peculiar circumstances 
.surrounding his death suggested to the followers in the 
wake of a "higher civilization" that it might not be 
politic to allow such a thing, and his body was simply 
taken to the morgue, where an inquest was held. In 
the examination it was found that the bullet had 
passed through the right ventricle of the heart, caus- 
ing instant death. The evidence having been heard, 
the jury returned a verdict that David S. Terry, aged 
sixty-seven years, had been killed by gunshot wounds 
at the hands of David Neagle. This was a wonder- 
ful verdict, considering the facts, as not only the few 
who saw it, but people in every State in the Union, in 
every city and town, and in the principal cities of the 
civilized world, knew it, but the law and custom de- 
manded that the fact be ascertained and placed upon 

(4^5) 



41 6 LIFE OF DAVID S. TERRY. 

record. There was no intimation that a crime had 
been committed, and no justification offered in defense. 
It was an open question, and in furtherance of justice, 
Mrs, Terry appeared before Justice of the Peace H. V 
J. Swain, in company with the district attorney of San 
Joaquin County, and sworeout a warrant upon complaint 
charging both Neagle and Justice Field with the murder 
of her husband. She was vindictive in her sorrow, and 
while she knew Justice Field had not committed the 
deed, she was just as sure that he was the one who 
provoked the quarrel, and she would sooner haye 
Field convicted and hung than have anything to do 
with Neagle, who was only Field's armor-bearer in the 
drama. The document prepared for the arrest of 
Field was placed in the hands of the sheriff, who pro- 
ceeded to San Francisco to serve it, as was his duty, 
and Sheriff Cunningham was never known to shirk 
his duty on any occasion, although, as in this instance, 
he generally knew whether there was any foundation 
for such a proceeding. 

The excitement at Stockton, where Judge Terry 
had lived so long, was intense, and while the most 
prominent men of that city made no particular demon- 
strations and exhibited no evidences of a spirit of re- 
venge, the country people, who loved him as a friend, 
and whom he had always befriended, were loud in 
their denunciation of the authorities and of the man 
who had committed the deed. He had been to them 
a champion, and they had failed to see in him the 
monster which politicians and men of ambition had 
painted him. Their hero lay dead before them, and 
during the long day, and even far into the night, the 



TERRY S FUNERAL. 417 

vehicles were seen coming from every direction. 
Large numbers remained all night, and the following 
morning the city was alive with fcirmers who were not 
slow nor timid in expressing their sentiments. There 
was some little anxiety felt in official circles, owing to 
the insecurity afforded by the old jail, and it found ex- 
pression in the following dispatch forwarded by the 
Associated Press to the Boston Herald on the morn- 
ing of the 1 6th — the day of the funeral: — 

"There is every prospect of a lively row at the 
Terry funeral this afternoon, and violence afterward. 
One of Terry's friends, Judge Porter of Arizona, pro- 
poses to deliver the funeral oration. He says he will 
go for Field, and denounce Terry's shooting as foul 
murder. If he does, some of the leading citizens 
declare they will stop him if they have to use force. 
Feeling runs very high in the town. Last night 
groups of men discussed the case for and against the 
Terrys. The ranchers and farmers from the interior 
came into town and mingled with Stockton people. 
Discussion on the street corners became boisterous at 
times. Here and there an old resident would say a 
bitter word against Justice Field. In many cases the 
kilHng of Terry was pronounced cold-blooded murder. 

"In consequence of talk upon the streets some alarm 
is felt at the county jail where Neagle is confined. 
No one is allowed to see the prisoner. A guard of 
six officers are on duty at the jail. No one is even 
admitted into the outer office of the prison. The jail 
is a dingy, old, two-story brick structure. It is merely 
intended as a makeshift until the new jail and court- 
house reach completion. During the night a small 



4lS LIFE OF DAVID S. TERRY. 

number of Terry followers, all rather desperate in 
character, gathered near the jail and made a careful 
inspection of the old trap. No threats were made, 
but one of the number quietly remarked later that it 
would only be child's play to storm that 'paper box' 
and pull Neagle out for introduction to Judge Lynch. 
This is certainly true. It would be an easy job, and a 
quick one. If a riot is successfully started this after- 
noon by Judge Porter's oration on the Mark Antony 
order, the storming of the jail would be the first part 
of the plot, and the citizens here are fearful of the 
result. It could not be held for ten minutes against a 
well-armed and determined attack. The sheriff, fore- 
warned of the probable danger to his prisoner, has 
drafted the best men he could find into the service 
of the county and intends to defend Neagle at all 
hazards. 

"This morning the situation is ominous. No loud 
professions of a programme are made by the Terry 
men, but they are holding whispered conferences at 
street corners, and evidently intend to carry out some 
desperate plot at the funeral this afternoon . There is 
great alarm in all the country around Stockton, and 
citizens have ordered the women and children to re- 
main indoors till the threatened trouble is over." 

The reference to Judge W. W. Porter was altogether 
out of place and did him a great injustice. While he 
was a dear friend and great admirer of Judge Terry, 
he was, on this occasion, too sad and seriously affected 
at the tragic death of one whom he considered with- 
out a peer in California, intellectually, morally (so far 
as honesty and integrity were concerned), and phvsi- 



TERRY S FUNERAL. 4I9 

cally, to take part in any but the most solemn exer- 
cises. He had no thought of delivering any oration, 
funeral or otherwise, although he was invited to do so. 
He was there merely to pay his respects to the mem- 
ory of the man whom he had so much admired while 
living, and, as he has said to the writer, to take a 
final leave of the form of one the like of whom he 
never expected to see again. There was no demon- 
stration at Stockton of an exciting character. There 
were no remarks at the grave when Terry's form was 
fittingly laid beside his first wife. The funeral was 
largely attended by the people from the country, and 
the pallbearers were all men of high social and busi- 
ness standing. Their names were: Hon. Henry Mil- 
ler, of Tehama County; Hon. B. F. Langford, of San 
Joaquin County; Hon. W. D. Grady, of Fresno 
County; W. E. Turner, Esq., of Stanislaus County; 
James C. Smith, Paul W. Bennett, General Canavan, 
Captain Murray, E. L. Colnon, James A. Morrissey, 
ex-Mayor Welch, Superior Judge Budd, S. D. Woods, 
J. D. Peters, George W. Trahern and Mayor Reuben- 
stein, of Stockton. 

Mrs. Terry and his surviving son, Clinton H. Terry, 
were the only relatives present, although there were 
many who sympathized deeply with them. The most 
careful attention was given to the disposition of the 
people, as many very foolish and unguarded expres- 
sions had been indulged in by a few who imagined 
that a riot might be possible in order to take N eagle 
from the jail and hang him, but the truth was that 
Neagle could have walked the streets without any fear 
of violence. The friends of Terry were in no mood 



420 LIFE OF DAVID S. TERRY. 

for violence, for they knew that he had exercised his 
vengeance beyond reason, and in the act had invited 
an attack, and that Field was the man who was ex- 
pected to resent the insult. Had Justice Field ap- 
peared upon the streets of Stockton it might not have 
been safe for him. Neagle was only considered a 
tool, and correctly so, and it would not have avenged 
the murder by treating him with any degree of vio- 
lence. He was no more responsible than the bullet 
which was projected from the pistol he held in his 
hand. Behind him was the official order, and behind 
that order was a power which has become more potent 
than all things else. 

As Neagle has achieved some notoriety as the man 
who killed Judge Terry and the armor-bearer of Jus- 
tice Field, a brief sketch of his brilliant career will 
necessarily be expected by the reader in connection 
with this subject: — 

David Neagle is well known where he was born, 
about thirty-five years ago. He was reared in the 
neighborhood of Telegraph Hill, where he lived until 
1870, when he went to Arizona, being attracted there 
by the mining excitement. In Arizona, Neagle went 
into the contracting business, sinking shafts in mines. 
Leaving the mines he went to Tombstone, where he 
first made his record as a cool, deliberate, self-reliant, 
and brave man. 

Neagle opened a saloon, and in a short time he 
became a great favorite with the better element of the 
town. 

It was about this time that the Earp brothers were 
running things with a high hand in that section. 



terry's funeral. 421 

These daring men were not the only ones who made 
life insecure, and the brawls that took place nightly 
seldom quieted down before one or more dead lay in 
the field. 

Neagle was a little man, not over five feet five inches 
in height, and weighing about one hundred thirty- 
five pounds. He is twenty pounds heavier now and 
two inches taller. He had quelled so many disturb- 
ances in his own saloon from time to time that his 
friends believed he would make a strongman to run 
as chief of police. He was elected, and from that 
moment desperadoes have had little to do with Tomb- 
stone. 

Shortly after he entered office, one of the Earps 
cama into town, and, passing Neagle, who was sitting 
with his chair tilted back on the porch outside of the 
saloon, said: — 

"So you're the man who is running this camp?" 

"I believe that's it," answered Neagle coolly, "or 
I'm trying to, at least." 

*'Well, I want you to understand you can't run one 
side of me," put in the bully. 

Neagle pushed his chair forward and rose. 

"Wait a minute," he said to Earp, and he walked 
into the saloon very deliberately, procuring pistols, 
and returning. 

"Take either one of these," he said to Earp. "I 
think you're a cur and I'll prove it, if you will come 
out here on the road." 

Earp was mastered and walked quietly away. 

It was but a short time after that when a drunken 
Mexican desperado entered the town to shoot every 

28 



422 LIFE OF DAVID S. TERRY. 

white man he could find. Poynton, one of Neagle's 
officers, attempted to arrest him and was shot down. 
Neagle armed himself and started out after the Mexi- 
can, who, after emptying his revolvers at his pursuer, 
jumped his horse and fled to the hills. 

Unmounted, and with an ordinary thirty-eight cali- 
ber revolver, Neagle made his way on foot through 
the hills, and the next day he returned on the Mexi- 
can's horse, packing the desperado's corpse in front of 
him. He had followed the fellow to his own lair and 
demanded his surrender. The Mexican grabbed for 
a rifle and shot Neagle through the clothing, but he 
never had time to shoot again, the chief's pistol ball 
striking him in the eye. 

Desperadoes had no further use for Neagle ^fter 
that affair, and Tombstone quieted down in good 
shape. 

Neagle was re-elected chief of police, and in 1882 
he ran for sheriff, being defeated by a few votes by 
John Behan. 

After a short visit to Butte, Montana Territory, 
Neagle came back to this city in 1883, and was a hard 
worker during the Cleveland campaign. 

When Sheriff Hopkins was elected in 1885, Neagle 
was appointed deputy sheriff, and, on account of his 
coolness and bravery, he was given the very hardest 
details of the office. 

Later he went into the license collector's office 
under Collector Tim O'Brien, where he worked till 
June 17, 1889. On that date he was appointed 
deputy United States marshal, under J. C. Franks. 



CHAPTER XLVII. 

Political AND Social Changes — Estimate of Terry's 
Mental Condition — The True State of His 
Mind and Cause of the Rash Act. 

Were it not for the peculiar incidents which fol- 
lowed the killing of Judge Terry, and questionable 
proceedings in extricating those who were incidentally 
responsible for the act, it would be most fitting that 
this highly interesting and sensational biography 
should close at the grave of the hero. But posterity 
will inquire into the condition of society at the time, in 
order to draw conclusions as to responsibilities. Else- 
where in this work an idea is presented that in the 
realms of science and art, the finite and infinite have, 
during the past century, been approaching each other 
with rapid strides, through the genius that has its 
origin in intellectual development, and the friction of 
mind in contact with matter. It is the age of elec- 
tricity, and that subtle fluid has become the servant 
of genius. While this is true, the moral and physical 
are becoming corrupt and debased in the process of 
drawing a marked and revolting line between poverty 
and wealth. The man who can be reached only 
through his convictions is a lonesome pilgrim in avast 
multitude, and while he may be respected for his in- 
tegrity, he is not appreciated. Nor this alone. If he 
has ambition for place and power, he must either part 

(423) 



424 LIFE OF DAVID S. TERRY. 

with his honor and independence or submit to defeat, 
unless he has fathomed the depth of human gratitude 
by a will force and wisdom which make the hero 
whose fame has become a household word against 
which the power of gold can have no impression. He 
must be upheld by the people, who sometimes be- 
come envious of their liberties, and produce a suc- 
cessful revolution. At present, trickery, duplicity, and 
fraud are the weapons of success, and rank corruption 
necessarily follows. 

There was in Judge Terry a something bordering 
on prescience in his political theories. He was not a 
seer of the school of divinity, but he suffered for fore- 
telling evils that were to come, as gauged by the cor- 
ruption that existed. He was not afraid to denounce 
it as it existed, and in this he became the enemy of the 
corruptionists. I n the formation period of this govern- 
ment when such men as Clay, Webster and Calhoun 
flourished, intellectual force, unswerving honesty, and 
devotion to principle were the virtues that were com- 
mendable. The middle period, that in which Broder- 
ick and Gwin flourished, intrigue, calumny and decep- 
tion ruled with just enough integrity to pay political 
promises. These could be fathomed and rebuked by 
the people, but the later force that has found its way 
into the politics of the country is one that is so in- 
sidious that it cannot be successfully combated. It 
is the enemy of honesty and integrity. It is the pur- 
chasing power, and produces corruption, by bribery 
and purchase. Gold has taken the reins of govern- 
ment in hand. Moral terpitude has become the rule 
in the held of official ambition, and the old and whole- 



PUBLIC SENTIMENT. 425 

some doctrine — "Is he honest? Is he competent?" — 
has been relegated to such tombs as that which con- 
tains the mortal remains of Judge David S. Terry. 

When a man steps down and out, leaving a place so 
conspicuous as that produced by the absence of Judge 
Terry, there must necessarily be some inquiry in regard 
to the condition and character of the man whose ab- 
sence creates such conspicuous vacancy. 

In building his reputation the people did not take 
his true character into consideration. They had neg- 
lected to build on the proper foundation. He was 
born and bred in the rough but honest walks of life, 
and he held to that principle which evolved the golden 
rule in his makeup of human obligations, believing 
that he who is true to himself will be true to others. 
In the exercise of his faculties and in the progress of 
time he had met with every phase of human nature 
and confronted all conditions of society. In his actions 
he had demonstrated a faculty to meet every emergency 
with a significance that required no discussion as to 
the merits of the case either in the forum of intellec- 
tual disputation, the force of business obligations or 
the power of endurance and protector of physical man- 
hood. He had combated with every advancing para- 
site that had sought to invade the body politic, which 
was and is the fundamental base of our liberty and 
freedom, and in the contest with the most dangerous 
and formidable of all — the *'almighty dollar" — he was 
unequal to the task. His faith in the sovereign will 
of the people was never shaken. When the "almighty 
dollar" was heard in the constitutional convention, and 
its advocates were pleading its cause and urging its 



426 LIFE OF DAVID S. TERRY. 

claims, threatening to defeat the constitution before 
the people if its claims were not recognized, he said: 
''I have too much regard for the intelligence of the 
people of this State to believe that the elections can be 
controlled by such means. The people have seen too 
much of that in the past. In spite of all their in- 
fluence, a square vote of the people of this State will 
sustain any measure which is intended to curb the 
grasping avarice of corporations and prevent further 
oppression." This was before the wholesale owner- 
ship of members of the Legislature and the debauchery 
of the judiciary was finally consummated, and the 
power transferred from the people to the monied power. 

There was much said and many comments made 
about the condition of Judge Terry's mind at the time 
of his assault upon Judge Field that fatal morning. 
There was a wide diversity of opinion among indi- 
viduals expressed as to the justification of the killing, 
but there could be but one sentiment as to the attack 
upon Judge Field. The simple assault was not so 
terrible in itself, and did not call for such extreme 
measures, but the far-reaching effect was made the 
basis for almost universal condemnation. Some indi- 
viduals have been kind enough in their desires to frame 
an excuse for Judge Terry's act, to attribute the au- 
dacious deedto a weakening of intellect. Among others, 
Hon. Creed Haymond, who had been a friend and ad- 
mirer of Terry's sturdy honesty and surprising intel- 
lectual force, while he condemned the act, expressed 
himself in the following language: — 

"I knew Terry very well. In my opinion Terry 
has not been himself for a year past. He has been 



PUBLIC SENTIMENT. 427 

crazy for a year. It was not the Terry of former 
days who walked into that dining room at Lathrop 
amone women and children and did an act that could 
not but in some way have led to bloodshed. It is my 
belief that if he had killed anybody during the past 
twelve months he would have been acquitted on ac- 
count of his mental condition. It was not the Terry 
of a few years back who caused that disgraceful scene 
a few months ago in the United States Circuit Court. 
I witnessed that remarkable defiance of the judiciary. 
I tried to calm him in his fury. When he thrust his 
hand into his bosom beneath his vest I caught his arm 
with my hands. With his great strength he threw me 
off as if I were a child. Several weeks later a friend 
of mine told Terry my experience with him. He was 
surprised, hardly believing it. With some emotion he 
said that he hadn't the least recollection of my actions. 
If United States Marshal Franks had not been re- 
markably courageous that day Terry would have been 
killed. A timid man would have shot him. Terry 
has met death at the hands of Neagle and nothing can 
be done to him for the shooting. Under the State's 
law.s he is not guilty. The first subdivision of section 
197 says that homicide is justifiable when committed 
to prevent a murder, or felony, or when there is an 
attempt to do someone great bodily injury. This 
latter clause goes further than the common law and 
the statutes of some of the other States. Homicide 
is not justifiable for a mere blow — a simple assault not 
accompanied with a design to do great injury. Each 
case depends on its own circumstances. N eagle's case 
has its marked circumstances. A' dangerous man had 



428 LIFE OF DAVID S. TERRY. 

to be dealt with. The man that assaulted Field had 
previously threatened him. Neagle was acting under 
the authority of the national government on account 
of these threats." 

While this is a charitable offering from a friendly 
standpoint in mitigation of the act, it was not a correct 
estimate of the condition of Judge Terry's mind. It 
may be true that he could not remember minor inci- 
dents that occurred during his moments of frenzy, 
such as the one related above, but he was possessed 
of a motive that absorbed all his emotions. That his 
mind was in such a condition that he would not have 
been held responsible had he committed murder at 
any time during the previous twelve months, was a 
generous offering to the memory of the dead jurist 
and worthy of the heart that conceived it; but- society 
was not built on such a generous foundation. His grim 
record, coupled with the hidden pov/er that lurked in 
ambush ready to destroy its adversary, would never let 
him escape. Having been the architect of his own 
fortune, he proposed to be the defender of his own 
honor. He had suffered humiliation in the eyes of 
the world at the hands of the man now before him. 
His spirit was grieved and his flesh was animated. 
His great mind had brooded over the matter until he 
had alienated himself from all the world, and he was 
firm and hard as adamant. His former friends had 
shown an indifference toward him which he accepted 
as their verdict against his judgment in selecting an 
associate in domestic life, and this verdict was the more 
galling and oppressive when the condemnation was 
manifested by a withdrawal of their former social re- 



PUBLIC SENTIMENT. 429 

lations. He judged the world as his enemy and he 
resolved to be the executioner in inflicting punishment 
on a plane parallel with his own standard of justice, 
and his own defender of personal honor. There was 
no exhibition of that fierce, violent and intemperate 
spirit that had actuated him on former occasions. He 
had considered long and well the measure of revenge. 
A premeditated, cool and determined step, devoid of 
emotion and excitement, took him to the rear of 
Justice Field. A sudden halt, a deliberate slap in the 
face, without an agitated nerve, as calm and with that 
supreme dignity and contempt that he would have 
slapped a troublesome cur, he executed his threat. No 
word, no boisterous movement was heard, and no note 
of warning accompanied the action. It was an act of 
defiance of all the laws of nature and of all the higher 
and nobler rules of society. 

It was both brave and cowardly — brave, because It 
invited death, and cowardly because it was performed 
without warning and from behind his enemy. He 
meant it to leave a stigma that would burn into a flame 
only to be quenched by blood. He had said that 
the world was not big enough to hide Justice Field 
from him and Judge Terry was incapable of uttering 
an idle threat under such circumstances, and of all men 
Field should have known that. In the face of a knowl- 
edge of these threats Justice Field had dared to "beard 
the lion in his den," and he found him. Lonely in his 
isolation from the world, he stood like Alcibiades, de- 
fying the arrows of his enemies, and like that Grecian 
hero, he braved the missiles of death that lay in ambush 
for him. 



430 LIFE OF DAVID S. TERRV. 

It was a deliberate act and executed with that dia- 
bolical coolness and absence of fear which character- 
ized Judge Terry, and which had, in all cases where 
he had exercised his peculiar faculty, provoked an 
almost universal condemnation. In the fullness of his 
mental faculties and with a determination that brooked 
no restraint he gave the blow, remembering with deep 
poignancy the Alameda jail and the indignity, the hu- 
miliation that had taken root in his heart at the time. 
He could not exist in the atmosphere which sur- 
rounded him. He preferred death. 

Such was undoubtedly the condition of his mind at 
that time, and he would have disdained any sympathy 
that reflected on his mental stamina. He had waited 
for and coveted the opportunity for a year, and no 
reconciliation could have been made. Nothing but the 
stern arm of the law could have intervened, and it 
was evident that those who had the power preferred to 
meet the emergency in a manner to remove him for- 
ever from the face of the earth, and so planned and 
arranged, as the sequel proved. 

There is no room for apology on behalf of Judge 
Terry. He asked for none and did not expect it. 
No one knew better than he the consequences of 
such a monstrous act. While h;^ may not have ex- 
pected to meet death as he did, he took his life in his 
own hands, with a full knowledge of the fact that the 
chances were against him. It was such a breach of 
good conduct and all manly dignity that the world 
stood aghast at the spectacle. It was as though every 
ftoble sentiment and every high emotion of his former 
manhood and honor had been quenched in his great 
heart. 



PUBLIC SENTIMENT. 431 

It is the universal sentiment expressed by his best 
friends and admirers, that while his death was un- 
timely, he did not die too soon. Rather, that he did 
not die soon enough. Had he passed away two years 
before, when the wife of his earlier life departed, he 
would have been remembered as the just and upright 
judge, the great counselor, the incorruptible lawmaker 
and citizen, the tender and loving husband and father, 
the brave defender of his honor and that of the com- 
monwealth, the advocate of the people against the 
encroachments of the moneyed power, the enemy of 
official corruption and venality, and the man of ac- 
knowledged ability and sterling integrity. 



CHAPTER XLVIII. 

Arrest of Justice Field — Released on Habeas 
Corpus — Action of the Supreme Court — 
Stockton Bar Resolutions — ^Action of the 
Fresno Bar. 

In obedience to the warrant issued by the justice of 
the peace of San Joaquin County, at the instance of 
Mrs. Terry and the district attorney, Sheriff Cunning- 
ham proceeded to San Francisco to arrest Justice 
Field for the murder of ex-Judge David S. Terry. 
He found the venerable justice in a room in the 
United States Custom House, and approached him 
with some timidity, not believing that he was in any 
direct manner responsible for the deed. Noticing his 
apparent hesitation, Justice Field, being aware of the 
object of his visit, spoke up promptly and said: — 

"Officer, proceed with your duty I am ready, and 
an officer should always do his duty." 

The warrant was then read and Justice Field ar- 
rested. He remained in the keeping of the sheriff 
until a writ of habeas corpus was issued by Judge 
Lorenzo Sawyer, and a traverse prepared by Field. 
In this denial he avers that he is "a justice of the 
Supreme Court of the United States, allotted to the 
Ninth Judicial Circuit; that the warrant of the Justice 
of the Peace H. V. J. Swain, of Stockton, issued on 

(432) 



PUBLIC SENTIMENT. 433 

the 14th of August, 1889, under which he is 
held, was issued upon the sole affidavit of one Sarah 
Althea Terry, who did not see the commission of the 
act which she charges to have been a murder, and 
who is, herself, a woman of abandoned character, 
utterly unworthy of belief respecting any matter what- 
ever, . . . That said warrant is the result of a 
conspiracy between said Sarah Althea Terry, H. V. J. 
Swain, justice of the peace, Avery C. White, district 
attorney, and E. L. Colnon, of Stockton, to prevent 
your petitioner from discharging the duties of his 
office hereafter, and to injure him in his person on 
account of the lawful discharge of the duties of his 
office heretofore, by taking him to Stockton, where he 
could be subjected to indignities, humiliations, and 
where they might compass his death. That the said 
conspiracy is a crime against the United States under 
the laws thereof, and was to be executed by an abuse 
of the process of the State court, two of said conspir- 
ators being officers of the said county of San Joaquin, 
one district attorney and the other a justice of the 
peace, the one to direct and the other to issue the 
warrant upon which your petitioner could be ar- 
rested." 

The scathing denial of the facts stated in the war- 
rant and petition for release under the writ of habeas 
corpus, was more of a charge arraigning the parties as 
criminals than a plea for freedom, and it created quite 
an excitement. The governor and the attorney-gen- 
eral of the State took an active part in the proceed- 
ings. They saw the ridiculous position in which the 
officers of San Joaquin County had pkced themselves, 
J, 



434 LIFE OF DAVID S. TERRY. 

and recommended that the case be dismissed. When 
the coroner's jury returned a verdict that Terry had 
been killed by a pistol shot in the hands of David 
Neagle, Field not being made a party to the murder, 
the case was dismissed. 

On the day of the funeral the Supreme Court of the 
State denied the petition on motion for a rehearing of 
the Sharon vs. Sharon case, which had been presented 
by Judge Terry, which practically ended all litigation 
in that celebrated legal controversy. It seemed fitting 
that the two should be consigned to the tomb on the 
same day. It was cause and effect ceasing to exist, 
leaving behind a lesson that should not be forgotten. 
On the same day, James L. Crittenden, an able attor- 
ney of San Francisco and an old and close friend of 
ex-Judge Terry, arose in the Supreme Court while 
that body was in session to offer a motion to adjourn 
out of respect to the man who had once been its honored 
presiding officer. In doing so he said: — 

" I desire to renew the matter which I began to 
present last evening. As a friend, a personal friend, 
of the late Judge Terry, I should deem myself very 
cold, indeed, and very far from discharging the duty 
which is imposed upon that relation if I did not 
present the matter which I propose to present to the 
bench this morning, I have known the gentleman to 
whom I have reference for over thirty years, and I 
desire simply now, in stating that I make this motion, 
to say that the friendship of so many years, and the 
acquaintance and intimacy existing between that gentle- 
man and his family and myself for so long a period, 
required that I s^hould at this time move this court as a 



PUBLIC SENTIMENT. 435 

court, out of recollection of the memory of the man 
who presided in the Supreme Court of this State for 
so many years with honor, ability and integrity, to ad- 
journ simply out of respect to his memory. I have 
no other eulogy to utter. I simply remember, and I 
hope this court will remember, that he did preside in 
this court as chief justice for a number of years, with 
ability, character and integrity, and therefore I ask 
this court, out of respect to his memory, to adjourn 
during the day on which he is to be buried, which is 
to-day." 

Chief Justice Beatty replied: "I regret very much 
that counsel should have persisted in making this for- 
mal announcement, after the intimation from this court. 
Upon full consultation he thought it better that it 
should not be done. The circumstances of Terry's 
death are notorious, and under those circumstances this 
court has determined that it would be better to pass 
the matter in silence, and not take any action upon it, 
and that is the order of the court/' 

This peremptory action of the Supreme Court was 
justly criticised. It was the spectacle of a judicial 
body to which David S. Terry had given more charac- 
ter than any man who had preceded or followed him, 
disregarding the sublime purity of the judiciary, as well 
as casting a slur upon that honesty and integrity with 
which he had invested it and made it respectable in 
the eyes of friends and foes. Beyond his character as 
ex-chief justice they had no right to go and with acts 
of his life outside of that they had no right to deal. 
It was simply condemning an upright man and playing 
to the lobby. How much more dignified, how much 



436 LIFE OF DAVID S. TERRY. 

more honorable, and how much more appropriate and 
just, was the action of the bar of San Joaquin County, 
where Judge Terry was best known, when, on the 
twentieth day of August, it took the following action 
in regard to the dead jurist and eminent attorney: — 

Whereas, On the fourteenth day of August, 1889, Hon, 
David S. Terry died in the county of San Joaquin; and whereas 
for many years he had been an eminent and honored member of 
the bar, practicing before this honorable court and before the late 
District Court, of which this honorable court, under the new 
constitution, is the successor; and whereas, at one time he, with 
distinguished learning, ability and integrity, presided over the 
Supreme Court of the State a chief justice; and, whereas, he 
was a member from this county to the constitutional convention, 
rendering valuable service to the people of the State, it is deemed 
just that his memory should be perpetuated in and by the records 
of this honorable court, and to that end, therefore, be it 

Resolved, That the late David S. Terry was a man of pre- 
eminent mental endowment; he stood intellectually easily in the 
front rank of the distinguished men who have, by their services, 
rendered the history of the western slope of the continent illus- 
trious; that his strong individuality marked him as one able to 
abide in his own judgment and to act upon his own volition 
unaided by the counsel of others; his intellect was imperious and 
submitted to but few limitations that hedge an ordinary mind; 
that under any condition and in any country he would have been, 
by reason of many great qualities, a leader among men. 

Resolved, That as a judge he was great and pure; that his 
judicial life is immortalized in his opinions, which have become 
part of the commonwealth embodied in the reports of the 
Supreme Court of the State, where they shall stand forever, 
reflecting luster upon his career as a judge without stain and 
above reproach. 

Resolved, That, as an advocate, his fidelity to the interests of 
his clients was proverbial; that his devotion to their interests had 
the force of a fine moral instinct, and he believed in the honor of 
his client as he believed in his own honor; that faculty of his 



PUBLIC SENTIMENT. 437 

mind drew him to what he regarded as the equities of his case, 
where he intrenched himself from thence to be removed never 
until his own intellect and moral consciousness were satisfied of 
his error. 

Resolved, That, as a friend, he was loyal and generous; that 
he enriched his friends with singular nobility, and that it was a 
strong nature that could resist his power of fascination when he 
chose to use it in winning friendship, which, once won, was by 
him held as a permanent possession forever. 

Resolved, That as a private citizen he was of acknowledged 
integrity, and in all his dealings with his fellow-men he was truth- 
ful and honest. 

Resolved, That for his services to the State and to the people 
he deserves to be remembered. 

These resolutions were adopted unanimously, en- 
tered upon the minutes in full, and the court there- 
upon adjourned out of respect to h memory. 

Following this, on the twenty-sixth day of August, the 
bar of Fresno, where Terry lived at the time of his 
death, met to consider the report of a committee ap- 
pointed at a previous meeting to prepare suitable 
resolutions concerning his death. The report recited 
the fact that ex-Judge Terry was a soldier of three 
wars, — "that of the war for Texan independence, 
that which triumphed in the conquest of the empire 
of which our great State is carved, in his early man- 
hood, and that of the great civil war in his maturity, 
in each of which he distinguished himself for daring 
and intrepidity. 

"That while occupying a judicial position the high- 
est in the commonwealth, he was famed not less for 
his terseness and profundity than for his spotless in- 
tegrity, impartiality and purity of character. In all 
29 



43^ LIFE OF DAVID S. TERRY. 

the relations of life he was bold to rashness; of gen- 
erous impulses, strong convictions and an acute sense 
of personal honor, he naturally made many enemies 
and mayhap some mistakes, but even his enemies have 
given him credit for the honesty of his motives and 
conduct, and no man has accused him of a petty or 
dishonorable act. Those who have known him inti- 
mately, know that in the private relations of life he 
was freer from vices, large and small, than most men, 
and was soft of heart and tenderly devoted to those 
close to him beyond what is usual, and he bound those 
to him with a fealty which great and kind natures 
only can command. Therefore, 

"■Resolved, ist. That in the death of Hon. David 
S. Terry, late chief justice of the Supreme Court of 
this State, the bar of this State has lost one of its 
most distinguished and able members; and that the 
people of this State have lost one of their staunchest 
defenders. 

"2d. That his brethren of the bench and bar of 
Fresno County deeply deplore his untimely death. 

"3d. That these resolutions be spread upon the 
minutes of the court, and that it adjourn for such 
period as the judges thereof may order, in respect of 
the memory of our deceased brother." 

A motion was made to lay these resolutions on the 
table, and among other remarks made was the follow- 
ing by Judge Nourse, which were perfectly proper 
from his standpoint, but which go to show that he had 
partaken solely of the prevailing but erroneous idea 
that Judge Terry had become enraged at the opinion 
of Justice Field in a case at law, and sought revenge 
because of that decision. In his remarks he said: — ■ 



PUBLIC SENTIMENT. 439 

"There could be no possible question about the 
facts in this case; that everyone knew that this attack 
was made by Judge Terry upon Judge Field because 
of decisions made by the latter in his judicial capacity; 
that if these decisions had never been made the attack 
would never have been made. We do not propose to 
attack Judge Terry; we do not propose to say any- 
thing against him; we only insist that under these 
circumstances it is not wise to take any action in the 
matter. If the proposed resolutions are adopted, all 
to whom they shall come will look upon this action of 
the Fresno bar as an indorsement of the final act of 
Judge Terry's life." 

True, without this suit and the manner of its 
termination there would have been no tragedy, and it 
is also true that if there had been no excessive im- 
prisonment for contempt Justice Field would not have 
been molested, although Terry, who was in a position 
to know better than any other man, believed that there 
had been means used which were not honest in bring- 
ing about that decision. 

The spirit which prompted this opposition to the 
resolutions aroused resentment, and after they had 
been adopted by a vote of eighteen to eight, reso- 
lutions were presented by a member of the bar, 
which, while they were dignified and correct in senti- 
ment, were not germane to the proceedings; however, 
the members of the bar should have adopted them 
without hesitation. 



CHAPTER XLIX. 

Justice Field Interviewed — The Attorney-Gen- 
eral Explains — The Order Denounced as 
Unprecedented — Personal Views — Denounced 
AS A Murder. 

Before Justice Field was released under the writ by 
the Circuit Court, he was called upon by prominent 
men and questioned as to his views of the homicide, 
and among others, newspaper men, who were anxious 
to ascertain his views in regard to Judge Terry. It was 
believed by many that a personal feud had existed 
between them, and that the imprisonment for con- 
tempt was only an excuse for the attack by Terry. 
Being closely questioned on that point Judge Field 
said in answer: — 

"Have you been at any time informed of any 
threats made against you by Judge Terry and his 
wife in consequence of this commitment for con- 
tempt ? " 

"Of course they were mere reports to me. I never 
heard, myself, from them, any threats, but reports 
were brought to me of threats made by them, from a 
great number of sources. 1 nformation was given to me 
almost every day from many. The threats were 
against my life or of great personal indignities and 
humiliations, which, if I resented, would cause me to 
(440} 



PUBLIC SENTIMENT. 441 

lose my life. No one knew better than Judge Terry 
that I would resent any personal indignity from what- 
ever source it might come; therefore, his threats were 
nothing less than that he would kill me if he met me. 
These threats were repeated to me by letters, by con- 
versations, in the clubs, on the streets, and there was 
not a day passed but what I heard of them. Rumors 
of those threats reached Washington. In consequence 
of them, the attorney-general thought proper, I 
am informed, to give instructions which have been 
read here. I will state, aside from this, that the 
attorney-general also was informed of them by some 
members of Congress from the Pacific Coast, among 
others. Senator Stewart, who advised him to give the 
necessary directions to the marshal of this district to 
see that not only myself, but that Judge Sawyer 
should be protected from personal violence at the 
hands of these parties." 

''Q. — Did you ever hear of any threats made by 
these people against Judge Sawyer .'*" 

''A. — In the same way that I heard the threats 
against myself. Of course I never heard anything 
from them, but others repeated to me what was said/' 

''Q. — Judge, did you ever have any difficulty with 
Judge Terry before his commitment for contempt,* 
last September.'*" 

'*A. — Never. I never had any. On the contrary^ 
I supposed he had a kindly feeling toward me. I 
went on the bench of the Supreme Court of this 
State on the 13th of October, 1857. I was 
sworn into office by Judge Terry. I was on the 
bench with him for two years, less one month, and 



44^ TTFF OF DAVTD S. TF.RRV. 

succeeded him as chief justice of this State. During 
all that time there never was an unpleasant interview 
between us, with, perhaps, this exception: He told 
me in 1858 or 1859 that he hoped the South would 
secede, because he wanted the slave trade with Africa 
revived. That led to a heated discussion between 
him and myself. Not only that, but whenever he al- 
luded to that subject, I spoke to him about the horror 
of the passage of slaves from Africa. He said he 
could not see any difference between getting negroes 
for slaves from Africa and taking them from one 
State to another. There was a little acrimony in that 
discussion, which took place several times. With 
that exception, nothing ever occurred during our in- 
tercourse to prevent us having pleasant consultations 
oa all legal questions. After he resigned I succeeded 
him as chief justice. I saw very little of him after- 
ward. When he went and joined the Confederacy of 
course I did not see him. On his return I do not think 
I met him until after 1870. After that he argued some 
cases before me. He always stopped before became 
into court and had a few pleasant words with rne, and 
also when I met him in the street and when I met him 
in the hotel. He never to my knowledge used an un- 
kind expression against me until after I committed 
him for contempt. I had no feeling toward h^m per- 
sonally in that proceeding. I would have committed 
the best friend I had in the world if he had been 
guilty of such outrages as he was guilty of on that 
day before this court. 

"The man seems to me to have been all changed 
in the last few year* and did not hesitate to asseift 



PUBLIC SENTIMENT. 443 

that the official actions of others were governed by 
improper considerations, I saw charges made 
against judges of the State courts that they had been 
corrupt in their decisions, that they had been bought." 

When the attorney-general was questioned in regard 
to the matter, and particularly in connection with the 
order to the United States marshal, he said: — 

"It was given out under my direction. There was 
danger that Judge Terry, who was stated to be a vio- 
lent and desperate man, would very likely make a 
deadly assault upon Judge Field and Judge Sawyer, 
or both of them, and that some precaution ought to 
be taken in the premises. I, therefore, called the at- 
tention of the marshal of that district to these state- 
ments, and told him that it was due to the country and 
courts that precautions should be taken to keep the 
peace, and protect the courts and judges in the dis- 
charge of their duties." 

Public sentiment had taken deep root, founded upon 
the reputation that politicians had given Terry in 
former years, the stabbing of Hopkins in 1856, 
when in contact with the Vigilance Committee in 
obedience to his high regard for lawfully-constituted 
tribunals of justice, and his duel with Broderick, pro- 
jected through the slums of the worst kind of politics, 
in the furtherance of personal ambition, and on the 
eve of a great national conflict, at which time the 
slavery question was the great issue, and Judge Terry 
was on the objectionable side. This duel was one 
which was inevitable as gauged by social conditions 
at the time and the pressure brought to bear by out- 
side influence, among individuals who were not in 



^44 tIFE OF DAVID S. TERRY. 

line with Judge Terry in any manner whatever. From 
the time of this duel up to the day he exhibited his pas- 
sion in the Circuit Court room in defense of his wife, 
he had been exemplary in his conduct. But the ban 
was upon him, and as he did not care to part with his 
well-grounded principles of honor and integrity to 
conform to the new order of things under a "higher 
civilization," it was "given out" and "stated" that he 
"was a violent and desperate man," and hence the 
attorney-general made the order so that the marshal 
should "take precautions" to protect the judges and 
"keep the peace." 

Just what counselors the marshal called to his as- 
sistance in determining the course to be pursued has 
not been developed, and probably never will be. It 
is historically certain that he did not receive his in- 
structions from those who possessed a humane desire to 
enforce the law, keep the peace, and protect human 
life. All the arrangements were projected from an anti- 
Terry standpoint, and he was kept in dense ignorance. 
He was a man who had the highest regard for the 
law. They knew that if placed under bonds to keep 
the peace he would suffer humiliation rather than vio- 
late his obligation. By such a procedure the ends 
sought to be accomplished would fail, and they chose 
rather to surround him with secret batteries in the 
hands of hired sentinels. In the presence of his un- 
guarded threats and his reputation for violence, his 
death, no matter how encompassed, would only cause 
a momentary ripple and the one who did the killing 
could and would be considered safe from punishment 
and become a hero in the circle which flocked and 



PUBLIC SENTIMENT. 445 

kneeled about the courts and avenues of wealth. The 
New York Tribune, a strong administration organ, 
edited by a gentleman of ability and the son-in-law of 
D. O. Mills, voiced the sentiment of Terry's friends 
when it said: — 

"The Department of Justice has assumed the re- 
sponsibility for the defense of the United States deputy 
marshal who killed Judge Terry. It has instructed 
the United States district attorney at San Francisco 
to take charge of the case. This will pit the Federal 
and State district attorneys against each other, if 
N eagle be put on trial for murder, and will bring up 
many questions of national and State jurisdiction and 
authority for which no precedents have been estab- 
lished. The proceedings of the department, while 
anomalous, are justified by the circumstances. Neagle 
acted as an agent of the attorney-general in protecting 
the associate justice, and the responsibility for his de- 
fense ought not to be shirked by those who employed 
him in an unprecedented exercise of Federal authority." 

The "unprecedented" was looming up on all sides, 
forced by the power that was making strides to the 
front under the "higher civilization," propelled by coin. 
It was begun in this case by a six months' imprison- 
ment for contempt and was followed up by a danger- 
ous system of espionage in view of getting rid of a man 
who was able to fathom the depth of human infamy and 
who was not afraid to denounce and expose it. While 
Judge Terry assumed a high-handed measure of re- 
sponsibility in his determination to wreak vengeance 
on the head of Justice Field, he was fully aware that 
by no other means could he hope or expect to give 



'44^ LIFE OF DAVID S. TERRY. 

back measure for measure where the odds were against 
him and the power was in the hands of the judges 
who held the reins. He had never threatened Field's 
life unless violent resentment was resorted to. He 
was the equal of Justice Field in all the elements that 
go to make up the man, and his superior in reputation 
for honesty and integrity. The whole country was 
aware of the eminence of the two gentlemen. Field 
was more particularly noted as being a member of a 
celebrated family, while Terry had become famous as 
one who had battled against the encroachments of 
fraud and corruption, and who had preserved the in- 
tegrity of the Supreme Court of the State while its 
honored chief justice, and had resigned that high po- 
sition to fight a duel in defense of his honor, which was 
made second only to the celebrated Burr-Hamilton duel. 

The San Francisco Call, one of the few newspapers 
that presented a calm review of the case and pointed 
out the only cause upon which the assault was based, 
published the following editorial the morning after the 
Lathrop tragedy: — 

"The remarkable career of David S. Terry was 
brought to a tragic end Wednesday morning. From 
the account of the meeting with Justice Field one 
would almost conclude that he courted the fate that 
overtook him. He certainly could not have expected 
that such an indignity as he offered Justice Field would 
be allowed to pass with the punishment meted 
out for ordinary assault. The spirit which prompted 
the encounter is one that is passing away with a higher 
civilization. The disposition to take the law into 
one's own hands as a means of redress for private 



PUBLIC SENTIMENT. 447 

wrongs, real or fancied, has blotted many a page of 
California's history. Physical courage, approaching 
insensibility to danger, has in the past served to divest 
the public mind of its horror of deeds of violence. 
This quality it may be admitted Judge Terry pos- 
sessed to an unusual degree. It has been displayed 
on other occasions with fatal results. The immediate 
cause of assault upon fustice Field was ex- Judge, Ter- 
ry's resentment of the order of the Circuit Co urt con- 
signing him to jail for contempt. This resentment 
was fanned by mischief makers who really persuaded 
Terry that he could not let such an affront pass with- 
out other notice than the redress the law provides. 
Articles have been circulated by a sensational con- 
temporary that pointed to such an encounter as Judge 
Terry sought, and it is probable that whatever purpos i 
he may have entertained originally was confirmed by 
these intimations that his friends expected him to seek 
personal satisfaction for the wrong he assumed the 
court to have done him. Ex-Judge Terry was too 
high-tempered to realize that his attack upon Just ce 
Field was an attack upon the courts. The personal 
danger to which Justice Field was exposed came to 
him through the performance of what he conceived his 
duty. Nature had been generous in many respects to 
the dead jurist. He was a man of remarkable physi- 
cal power and courage, and his mind was constructed 
in a scarce less generous mould. His infirmity was 
that of temper and of the school in which he was 
reared. Had he been the law-abiding citizen with the 
reverence for the law which one of his profession 
should entertain, he might have aspired to the highest 
honors this State had to bestow." 



44^ LIFE OF DAVID S. TERRY. 

The intimation that Judge Terry was not a law-abid- 
ing citizen is without proof. It is an assertion with- 
out an authority. If he had any infirmity in that Hne 
it was on the other extreme. He beHeved that the 
object of law was to secure justice and a strict ad- 
herence to its principles was the great object of his 
life. As has been said in another place in this work, 
as a judge he was a martinet, and no consideration, 
personal or otherwise, could make him depart from 
his convictions of right and justice. He violated no 
law in all his professional career, but when force met 
force in defense of honor as custom demanded, and 
where a higher law seemed to be necessary for the 
protection of manhood, the statutes were suspended. 
The Visalia (Cal.) Delta, a newspaper not fettered by 
the moneyed influence, in speakingof the killing, said: — 

"Opinions expressed find something to blame in the 
conduct of both Terry and Field. There appears to 
have been premeditation on both sides. Terry was 
not justified in offering to Justice Field, in public, the 
indignity he did, and the action of Justice Field in 
having with him a person whose business appeared to 
have been to kill Terry on the least provocation, looks 
cowardly. There is little regret over the death of 
Judge Terry, but the manner in which he was killed 
meets with universal condemnation. Had Field him- 
self resented the blow from Terry and in doing so 
killed him, public opinion would have justified him, 
but it does not justify the employment of a person for 
the purpose of killing Terry on the slightest provo- 
cation." 

Private opinions were expressed by many persons, 



PUBLIC SENTIMENT. 449 

in all of which the manner of the killing was con- 
demned, while all seemed to agree in that the act of 
Judge Terry in making the assault was the most au- 
dacious to be found in the annals of history. Nobody 
but Judge David S. Terry was capable of such an act — 
so cool, so presumptuous, so outrageous in its execu- 
tion. A few of his friends, all of whom were attor- 
neys of San Francisco, have been quoted, as follows: — 
James C. Crittenden — I can see no excuse for the 
killing of Judge Terry. It was uncalled for and un- 
necessary. If Justice Field had shot Terry, there 
might have been some excuse for the action, but a 
blow is not a sufficient excuse to justify a homicide. 
There is nothing to show that Terry contemplated 
committing a felony, or intended doing any great 
bodily harm, and consequently the killing was unneces- 
sary. The arrest of Justice Field under the circum- 
stances is eminently proper and just. For that emi- 
nent jurist and advocate, I have the highest respect, 
biit-none should be above the law. 

W, P. Lawlor — The killing was unnecessary. A 
policeman calls upon a criminal to submit to arrest, 
before shooting him. The marshal should have done 
the same. He was a sworn officer, presumably cool 
and collected, and he should have known his duty. I 
do not justify Terry's acts, but he had done nothing to 
forfeit his life. 

Edward L. Rhodes — There was no excuse, no ne- 
cessity, for the killing. In a legal aspect the marshal 
acted inadvisedly. His statement about his words of 
warning to Terry are all bosh. Judge Terry died 
without knowing that he had been shot by an officer. 



450 LIFE OF DAVID S. TERRY. 

Terry is to be condemned for slapping Field, but he 
ought not to have been killed for it. 

James W. Stevens, superintendent of the Manhat- 
tan Life Insurance Company, was very forcible in his 
denunciation of the homicide, pronouncing it a cold- 
blooded murder. 

"Why on earth," said he, "could not the man have 
acted otherwise, had he not been determined to kill 
Judge Terry if any opportunity offered? Could he 
not have seized Terry's arm and prevented him from 
drawing a weapon? Could he not have thrown a dish 
in his face? Could he not have covered him with his 
pistol and ordered him to throw up his hands? He 
could at least have covered him and reserved his fire 
until Terry had drawn his own pistol and placed Judge 
Field's life actually in danger. As it is, Terry was 
shot down simply for slapping another man's face, and 
that, too, not by the man he slapped but by a paid 
henchman. I look upon this affair as a cold-blooded, 
premeditated murder. Field is openly acC'iised of re- 
ceiving bribes, and this looks like he was not above 
conspiring to commit murder." 

R. B. Purvis, the sheriff of Stanislaus County, who 
arrested Neagle, said: — 

"I was on my way to San Francisco and was at 
Lathrop when the affair occurred. I was not in the 
dining roo.n, but heard the shots from where I stood, 
and at once rushed into the room. 

"Upon the floor lay the body of Judge Terry, just 
as if he had lain down to sleep. His eyes were wide 
open, and his features wore an expression that bespoke 
no anger nor perturbation of spirit. I stooped down 



PUBLIC SENTIMENT. 45 1 

over him and watched his lifeblood ebb away, saw his 
last gasps for breath, and then closed his eyes, which 
were staring placidly up at the ceiling. 

"As soon as the judge expired I went over to the 
train for the purpose of arresting the murderer, and I 
found that Justice Field had got into the car and had 
both doors locked and a guard at each end of the car. 
I stated who I was. and demanded admittance, which 
was granted." 

"Was there any resistance or disinclination on 
N eagle's part.''" 

"None whatever. On the contrary, I think he felt 
safer after being arrested. Justice Field tried to talk 
me out of the arrest, claiming that I had no right to 
arrest Neagle, but I paid no attention to that at all. 

"When I entered the car Field stated to me that 
Terry had come up and slapped his face and then 
struck him a fierce and heavy blow in the face. This 
could not have been true, as I examined his face care- 
fully, and there was not even a red mark on it. 

"So far as Neagle's defying anyone to arrest him 
is concerned, that is all bosh. He made no resistance 
at all. I took him duwn to Tracy, where he was given 
in charge of Constable Walker, who took him, by 
means of a private conveyance, to Stockton, and I can 
assure you that he was intensely glad to go that way. 

"One other thing I wish to correct, and that is the 
statement that Neagle said to Judge Terry, * Stop, 
stop!' He said nothing, but deliberately drew his 
pistol and killed him." 

In this instance the testimony of Mr. Purvis is cor- 
roborated by Mr. Lincoln, one of the proprietors of 



452 LIFE OF DAVID S. TERRY. 

the eating house, who was not only present, but a very 
anxious observer of every movement during the- ex- 
citement. There is no occasion for quibbhng in the 
matter. The evidence on which any reliability can be 
placed is indisputable, and reason itself is sufficient to 
prove that Terry had no warning, and that he was 
killed not realizing the presence of any officer of the 
law. 

Two of the most eminent lawyers of Washington 
City, when questioned as to the killing, gave unre- 
served opinions from the highest legal standpoints in 
the following language. 

J. J. Darlington, one of the leading members of the 
bar, said: "I think that the killing of Judge Terry by 
Deputy Marshal Neagle was perfectly indefensible. 
The attorney-general had no right whatever to send a 
man to look after the person of Associate Justice 
Field. If such a contingency had arisen that his life 
was in danger, the proper thing to have done was to 
have had Judge Terry arrested. Blackstone very 
plainly puts down the law on this subject. In the 
defense of oneself, every member of the family, wife, 
brother, father, or sister, a man has a perfect right to 
employ all necessaries, even to the taking of life. In 
this case, it seems to me that Neagle greatly ex- 
ceeded his authority. He had no more legal right 
under the law to shoot Judge Terry than I had." 

William T. Webb, ex-commissioner of the district 
and one of the oldest practitioners at the Washington 
bar, said: "In my opinion, the killing of Judge Terry 
by Deputy Marshal Neagle was entirely unjustifiable. 
The proper course would have been to arrest Terry 



PUBLIC SENTIMENT. 4^3 

the very moment any act of violence was committed 
upon the person of Associate Justice Field. I think. 
Neagle exceeded his authority. The mere fact of 
shooting down a man for an assault committed upon 
someone else is not justified in law. A man may be 
suspected of a felony, which is a penitentiary offense, 
and when he is known to be a desperate character, 
the circumstances for such an overt action might be 
justifiable. I cannot see how Neagle can be excused. 
It may have been that the threats of Judge Terry 
against the life of Justice Field were of such a nature 
as to justify the attorney-general to use proper pre- 
caution to see that the administration of justice was 
not interfered with. I don't imagine that there can 
be any doubt of that point, but killing a man for 
slapping the face of another is a rather serious busi- 
ness. Neagle was not a relative of Associate Justice 
Field, nor was he assaulted, and yet he shot down a 
man in cold blood for slapping the face of some- 
one else. He was clearly in the wrong, and should 
have arrested Terry, and thus avoided this terrible 
tragedy." 



30 



CHAPTER L. 

David Neagle — Taken under Writ of Habeas 
Corpus to San Francisco — The Questionable 
Transfer Done under Cover of Darkness 
and in Secrecy — Released without a Trial 
—An Ingenious Document. 

The Federal authorities having assumed the re- 
sponsibility of the death of Judge Terry, his slayer 
was to be taken care of by that arm of the service, 
and means must be provided to release him from his 
imprisonment at Stockton. While there was no 
danger of any undue or violent proceedings against 
him, or any thought of his life being in danger, the fact 
that he had committed an act which was a crime 
against the laws of the State of California, and that he 
was amenable to its courts of justice, must be evaded in 
order to consummate the travesty on justice and set 
the prisoner free. He was, for the time being, the 
servant of the United States and the paid agent of 
the department of justice, and although that high 
tribunal should be held above suspicion in its every 
act, there was something which caused it to concoct 
and execute a scheme, worthy only of the actions of 
the celebrated " Council of Ten," in the dispensation 
of justice. When the highest judicial tribunal in the 
land has to resort to scheming, and to carry out its 

( 454 ) 



PUBLIC SENTIMENT. 455 

schemes in secret and the darkness which protects 
the burglar and highwayman, the natural and only 
correct inference is that justice must be thwarted and 
crime covered up. The spectacle of a special train 
under cover of darkness and under orders from the 
United States Circuit Court, stealing its way across 
the plains, in an enlightened, free, and sovereign 
State, to take from a county prison a man who, al- 
though he had killed his fellow-man, was in no danger 
of punishment, has all the evidences of a desire to 
usurp the judicial prerogatives of a State, and thwart 
justice. 

In this instance there was an underlying, deep 
design. There was no desire on the part of the 
Federal authorities, much less of other parties deeply 
interested in the matter, to submit to investigation. 
It would have developed more than the attorney-gen- 
eral ever dreamed of, although he was conscious of the 
fact that justice demanded an investigation. On this 
question he was free to speak, and in so doing he re- 
flected rather severely upon the course that was finally 
adopted. Although guarded in his utterances lest he 
would involve someone in the meshes of the law, he 
undoubtedly recognized the fact that the State had a 
right and would take charge of the investigation. On 
this matter he said: — 

"It was given out under my direction. In June 
I think it was, Justice Field and, I believe, some 
others, brought to my mind a case referring to 
the trouble out there last summer, and saying that 
there would likely be trouble again this summer. 
There was danger that Judge Terry, who was stated 



45^ Life of david s. terry. 

to be a violent and desperate man, would very likely 
make a deadly assault upon Judge Field or Judge 
Sawyer — or both of them — and that some precautions 
ought to be taken in the premises. 

"I see from the papers that the action of the deputy 
is pretty generally indorsed. It appears to be consid- 
ered that N eagle's presence was necessary and his 
action justifiable. I do not care to speak of the legal 
aspects of the case. I do not know any case analo- 
gous to it in our history, and I do not recall that it 
has ever been necessary before to protect a United 
States judge. If the case comes to trial, I suppose 
I will be called to testify, but I question whether 
there will ever be a trial. The grand jury may refuse 
to act or the coroner's jury may find it a case of justi- 
fiable homicide. I have not examined the legal side 
of the question, however. 

"I thought the protection of the officers of the law 
might be necessary, and I knew something about the 
desperate character of the man with whom Justice 
Field had to deal. I thoLght of trouble when the 
trial began, but of course I did not look for it at a 
way station or upon the train. If the justice's life was 
in danger, though, he was as much entitled to the 
protection of an officer at an eating house as in a 
court room or upon a bench." 

A writ of habeas corpus was issued by the United 
States Circuit Court for the release of David Neagle, 
and the sheriff of San Joaquin Couuty was ordered to 
take the prisoner to San Francisco, where the appli- 
cation was made and to be heard before Judge Hoff- 
man. The officer was instructed to take him from 



PUBLIC SENTIMENT. 457 

the Stockton jail early in the morning, and while it 
was yet dark, and by a special car, with special orders 
for a swift transit, to land him in San Francisco. It 
was a rather unique proceeding, considering the fact 
that the people of Stockton and San Joaquin County 
were considered loyal and peaceable, and had never 
exhibited a disposition to paralyze the arm of the ju- 
diciary or rebel against the processes of law. They 
had more like exhibited a submission under the ex- 
traordinary circumstances, and even assisted in keep- 
ing the peace when a revolt was imminent. 

When Justice Field was arrested they unanincously 
declared it a high-handed act of injustice and folly, 
and the judicial inquiry over the body of the dead 
jurist, their own respected citizen, made no reference 
to Justice Field. There was a most remarkable ex- 
hibition of good judgment and forbearance in all their 
actions, and this clandestine movement on the part of 
the Federal authorities in the transfer of Neagle, cre- 
ated a feeling which had but one interpretation in the 
minds of men, who were always ready to submit to 
the operations of a writ so sacred as that of habeas 
corpus, no matter from what court it originated. 
There was no desire to bring a conflict between the 
Federal and State authorities, although the most 
eminent judicial minds considered the case one in 
which the State had jurisdiction. 

Neagle was taken charge of by the Federal judici- 
ary and the application was heard before Judge Hoff- 
man, of the District Court. The attorneys for the 
State, seeing the end of the mattt^r, and recognizing 
the fact that he would be discharged without a trial, 



458 LIFE OF DAVID S. TERRY. 

retired from the contest and permitted the farce to go 
by default. After statements had been made by 
Justice Field and others, and the orders and authori- 
ties under which Neagle had acted, there being no 
one present to present the case of the people or rep- 
resent the State in the hearing of the application, 
Judge Hoffman presented the decision of the court in 
the following elaborate and remarkable paper, which 
the reader can peruse with profit: — 

"In the Circuit Court of the United States, Ninth 
Judicial Circuit, Northern District of California. In 
the matter of David Neagle on Habeas Corpus, No. 
10,469. 

STATEMENT OF FACTS. 

"Before Sawyer, circuit judge, and Sabin, district 
judge. 

"John T. Carey, United States attorney, Richard S. 
Mesick, Samuel M. Wilson, W. F. Herrin, W. L. 
Dudley, H. C. McPike, C. L. Ackerman, J. C. Camp- 
bell for the petitioner. 

"G. A. Johnson, attorney-general State of California, 
J. P. Langhorne, Avery C. White, district attorney 
San Joaquin County, Cal., for the respondent. 

"This is an application for the discharge of David 
Neagle, upon a writ of habeas corpus. It arises out 
of the following facts: — 

On the 3rd of September, 1888, certain cases were 
pending in the Circuit Court of the United States, 
for the Northern District of California, between Fred- 
erick W. Sharon, as executor, vs. David S. Terry and 
Sarah Althea Terry, his wife, and between Francis G. 
Newlands, as trustee, and others against the same 



PUBLIC SENTIMENT. 459 

parties, on demurrers to bills to revive and carry into 
execution the final decree of the court, in the suit of 
William Sharon vs. Sarah Allhea Hill, and were de- 
cided on that day. That suit was brought to have 
an alleged marriage contract between the parties ad- 
judged to be a forgery, and to obtain its surrender 
and cancellation. The decree rendered adjudged the 
alleged marriage contract to be a forgery and ordered 
it to be surrendered and canceled. The decree was 
rendered after the death of William Sharon, and was^ 
therefore, entered as of the day when the case was 
submitted to the court. By reason of the death of 
Sharon, it was necessary, in order to execute the de- 
cree, that the suit should be revived. Two bills were 
filed, one by the executor of the estate of Sharon, 
and the other, a bill of revivor and supplemental, by 
Newlands, as trustee for that purpose. 

"In deciding the cases, the court gave an elaborate 
opinion upon the question involved, and while it was 
being read, certain disorderly proceedings took place ^ 
for which the defendants, David S. Terry and wife, 
were adjudged guilty of contempt and ordered to be 
imprisoned. The following is an accurate statement 
of those proceedings, slightly condensed from the opin- 
ion of the court, delivered on the subsequent applica- 
tion of David S. Terry, to have the order of commit- 
ment revoked. For the whole proceeding, see ht re 
Terry, 36, Fed. Rep., 419. 

"Shortly before the court opened the defendants 
came into the court room and took their seats within 
the bar at the table next to the clerk's desk, and almost 
immediately in front of the judges, the defendant, 



460 LIFE OF DAVID S. TERRY. 

David S. Terry, being at the time armed with a 
bowie knife, concealed on his person, and the defend- 
ant, Sarah Althea, his wife, carrying in her hand a 
small satchel, which contained a revolver of six cham- 
bers, five of which were loaded. The court, at that 
time, was held by the justice of the Supreme Court of 
the United States, allotted to this circuit, who was 
presiding, the United States circuit judge of this cir- 
cuit, and the United States district judge, of the dis- 
trict of Nevada, called to this district to assist in 
holding the Circuit Court. Almost immediately after 
the opening of the court, the presiding justice com- 
menced reading its opinion in the cases mentioned, 
but had not read more than one-fourth of it, when 
the defendant, Sarah Althea Terry, arose from her 
seat and asked him, in an excited manner, whether he 
was going to order her to give up the marriage con- 
tract to be canceled. The presiding justice replied, 
'Be seated, madam.' She repeated the question, 
and was again told to be seated. She then called ©ut 
in a violent manner that the justice had been bought, 
and wanted to know the price he held himself at; that 
he got Newlands' money for his decision, and every- 
body knew it, or words to that effect. It is impossible 
to give her exact language. The judge and parties 
present differed as to the precise words used, but all 
concurred as to their being of an exceedingly vituper- 
ative and insulting character. 

"The presiding justice then directed the marshal to 
remove her from the court room. She immediately 
exclaimed that she would not go from the room, and 
that no one could take her from it, or words to that effect. 



PUBLiIC SENTIMENT. , 46 1 

The marshal thereupon proceeded toward her to carry 
out the order for her removal, and compel her to 
leave, when the defendant, David S. Terry, rose from 
his seat, evidently under great excitement, exclaiming, 
among other things, that "no living man shall touch 
my wife," or words of that import, and dealt the mar- 
shal a violent blow in his face. He then unbuttoned 
his eoat and thrust his hand under his vest, where his 
bowie knife was kept, apparently for the purpose of 
drawing it, when he was seized by persons present, 
his hands held from drawing his weapon, and he him- 
self forced down on his back. The marshal then 
removed Mrs. Terry from the court room. Soon 
afterward Mr. Terry was allowed to rise and was 
accompanied by officers to the door leading to the 
corridor on which was the marshal's office. As he 
was about leaving the room, or immediately after 
stepping out of it, he succeeded in drawing his knife, 
when his arms were seized by a deputy marshal and 
others present to prevent him from using it, and they 
were able to take it from him only after a violent 
struggle. 

"The petitioner, N eagle, succeeded in wrenching 
the knife from his hand whilst four other persons held 
onto the arms and body of Terry, one of whom held 
a pistol at his head, threatening at the same time to 
shoot him if he did not give up the knife. To these 
threats Terry paid no attention, but held onto the 
knife, actually passing it during the struggle from one 
hand to another. 

"Mr. Cross, a prominent attorney, who on that oc- 
casion sat next to Mrs. Terry, a little to her left and 



462 LIFE OF DAVID S. TERRY. 

rear, testifies that just before she arose to interrupt 
Judge Field she nervously fingertd at the clasp of a 
small satchel about nine inches long, and tried to open 
it; and not succeeding, in consequence of her excite- 
ment, she hastily sprang to her feet and interrupted 
the judge, as hereinbefore stated. Knowing that she 
had before drawn a pistol from a similar satchel in the 
master's room, he concluded at this time that she was 
trying to get her pistol out, and he consequently held 
himself in readiness to seize her arm as soon as it 
should appear and endeavor to prevent its use until 
he could get assistance, his right arm being partially 
disabled. For one occasion in the master's office see 
Sharon vs. Hill, 11, Sawyer, 125. At this time Mrs. 
Terry sat directly in front of Justice Field and the 
circuit judge, less than four yards from either. A 
loaded revolver was afterward taken from this satchel 
by the marshal. For their conduct and resistance to 
the execution of the order of the court the defendants, 
Sarah Althea Terry and David S. Terry, were ad- 
judged guilty of contempt and ordered to be im- 
prisoned, the former for thirty days and the latter for 
six months. 

"In consequence of the imprisonment which fol- 
lowed various threats of personal violence to Justice 
Field and the circuit judge were made by Judge Terry 
and his wife. These threats were that they would take 
the lives of both of those judges; those against Justice 
Field were sometimes that they would take his life di- 
rectly, at other times that they would subject him to 
great personal indignities and humiliation, and if he 
resented they would kill him. 



PUBLIC SENTIMENT. 463 

'* These threats were not made in ambiguous terms, 
but openly and repeatedly, not to one person, but to 
many persons, till they became the subject of conver- 
sation throughout the State and of notice in the pub- 
lic journals. Reports of these threats through the 
press and through reports of the United States mar- 
shal and United States attorney reached Washington, 
and in consequence of them the attorney-general 
thought proper to give instructions to the marshal of 
the United States for the northern district of California 
to take proper measures to protect the persons of 
those judges from violence at the hands of Terry and 
his wife. On the return of Judge Field from Wash- 
ington to attend his circuit in June last, the proba- 
bility of an attack by Judge Terry upon him was the 
subject of conversation throughout the State, and of 
notices in some of the journals in the city of San 
Francisco, It was the general expectation that if 
Judge Terry met Judge Field violence would be at- 
tempted upon the latter. 

" In consequence of this general belief and expec- 
tation, and the fact that the attorney-general of the 
United States had given instructions to the marshal to 
see that the persons of Justice Field and of the circuit 
judge should be protected from violence, the marshal 
of the northern district appointed the petitioner in 
this case, David Neagle, to accompany Mr. Justice 
Field whilst engaged in the performance of his duties 
and whilst passing from one district to another within 
his circuit, so as to guard him against the threatened 
attacks. He was specially commissioned as a deputy 
by Mr, Franks, whose instructions to him were that he 



464 LIFE OF DAVID S. TERRY. 

should protect Justice Field at all hazards; and, know- 
ing the violent and desperate character of Judge Terry, 
that he should be active and alert and be fully 
prepared for any emergency, but not to be rash; and 
in case any violence was attempted from anyone, Jto 
call upon the assailant to stop, and to inform the as- 
sailant that he was an officer of the United States. 

"Judge Terry was a man of great size and strength, 
who had the reputation of being always armed with a 
bowie knife, in the use of which he was specially 
skilled, and of showing great readiness to draw and 
use it upon persons toward whom he entertained any 
enmity or had any grievance, real or fancied. 

"On the 8th of August, 1889, Justice Field left San 
Francisco for Los Angeles in order to hear a habeas' 
corpus case which was returnable before him at that 
city on the loth of August, and also to be present at 
the opening of the court on the 12th. He was ac- 
companied by Deputy Marshal Neagle, the petitioner. 
Justice Field heard i\\Q kadeas-corpus c^-so. on the loth 
of August. On the 12th of August he opened the 
Circuit Court, Judge Ross sitting with him, and he de- 
livered on the latter day an opinion in an important 
land case, and also an opinion in the haheas-corpus 
case. On the following day the court heard an ap- 
plication for an injunction in an important water case 
from San Diego County. No other cases being ready 
for hearing before the Circuit Court, he took the train 
on Tuesday, the 13th, at 1:30 o'clock in the afternoon, 
for San Francisco, where he was expected to hear a 
case then awaiting his arrival, immediately upon his re- 
turn, being accompanied on his return by Deputy 



PUBLIC SENTIMENT. 46$ 

Marshal Neagle. On the morning of the 14th, be 
tween the hours of 7 and 8 in the morning, the train 
arrived at Lathrop, in San Joaquin County, which is 
in the northern district of CaHtornia, a station at which 
the train stopped for breakfast. Justice Field and the 
marshal at once entered the dining room, there to take 
their breakfast, and took their seats at the third table 
in the middle row of tables. Justice Field seated him- 
self at the extreme end, on the side looking toward 
the door. The deputy marshal took the next seat on 
the left of the justice. What subsequently occurred is 
thus stated in the testimony of Justice Field: — 

" *A few minutes afterward Judge Terry and his 
wife came in. When Mrs. Terry saw me, which she 
did directly she got diagonally opposite me, she wheeled 
around suddenly and went out in great haste. I after- 
ward understood, as you heard here, that she went for 
her satchel. Judge Terry walked past opposite to 
me and took his seat at the second table below. The 
only remark I made to Mr. Neagle was, "There is 
Judge Terry and his wife." He remarked, "I see 
him." Not another word was said. I commenced 
eating my breakfast. I saw Judge Terry take his seat. 
In a moment or two afterward I looked round and saw 
Judge Terry rise from his seat. I supposed at the 
time he was going out to meet his wife, as she had not 
returned, so I went on with my breakfast. It seems, 
however, that he came round back of me — I did not 
see him — and he struck me a violent blow in the face, 
followed instantaneously by another blow. Coming so 
immediately together, the two blows seemed like one 
assault. I heard, "Stop, stop!" cried by Neagle. , Of 



466 LIFE OF DAVID S. TERRY. 

course I was for a moment dazed by the blows. I 
turned my head round and I saw that great form of 
Terry's with his arm raised and his fist clenched to 
strike me. I felt that a terrific blow was coming, and 
his arm was descending in a curved way as thouo^ht to 
strike the side of my temple, when I heard Neagl<i 
cry out, "Stop, stop! I aman officer." Instantlytwo 
shots followed. I can only explain the second shot 
from the fact that he did not fall instantly. I did not 
get up from my seat, although it is proper for me to 
say that a friend of mine thinks I did; but I did not. • 
I looked around and saw Terry on the floor. I looked 
at him and saw that particular movement of the eyes 
that indicates the presence of death. Of course it was 
a great shock to me. It is impossible for anyone to 
see a man in the full vigor of life, with all those facul- 
ties that constitute life instantly extinguished, without 
being affected, and I was. I looked at him for a mo- 
ment, then rosefrom my seat, went around and looked at 
him again and passed on. Great excitement followed. 
A gentleman came to me whom I did not know, but I 
think it was Mr. Lidgerwood, who has been examined 
as a witness in this case, and said, "What is this?" I 
said: "I am a justice of the Supreme Court of the 
United States. My name is Judge Field. Judge 
Terry threatened my life and attacked me, and the 
deputy marshal has shot him." The deputy marshal 
was perfectly cool and collected and stated, "I am a 
deputy marshal and have shot him to protect the life 
of Judge Field." I cannot give you the exact words, 
but I give them to you as near as I can remember 
them. A few moments afterward the deputy marshal 



t»UBLIC SENTIMENT. 467 

said to me, "Judge, I think you had better go to the 
car." I said, "Very well." Then this gentleman, Mr. 
Lidgerwood, said, "I think you had better." And 
with the two I went to the car. I asked Mr. Lidger- 
wood to go back and get my hat and cane, which he 
did. The marshal went with me, remained for some 
time and then left his seat in the car, and, as I thought, 
went back to the dining room. (This is, however, I 
am told, a mistake, and that he only went to the end 
of the car.) He returned, and either he or someone 
else stated that there was great excitement; that Mrs. 
Terry was calling for some violent proceedings. I 
must say here that dreadful as it is to take life it was 
only a question of seconds whether my life or Judge 
Terry's life should be taken. I am firmly convinced 
that had the marshal delayed two seconds both he and 
myself would have been the victims of Terry.' 

"Mr. Neagle, in his testimony, stated that before 
the train arrived at Fresno he got up and went out on 
the platform, leaving the train, and there saw Judge 
Terry and his wife get on the cars; that when the 
train arrived at Merced he spoke to the conductor, 
Woodward, and informed him that he was a deputy 
United States marshal, that Judge Field was on the 
train, and also Judge Terry and his wife, and that he 
was apprehensive that when the train arrived at Lath- 
rop there would be trouble between those parties, and 
inquired whether there was any officer at that station, 
and was informed in reply that there was a constable 
there; that he then requested the conductor to send 
word to the officer to be at^Lathrop on the arrival of 
the train, and that he also applied to other parties to 



46^ LIFE Of DAVID S. TERRY. 

induce them to endeavor to secure assistance for him 
at that place in case it should be needed. The deputy 
marshal further stated that when the train arrived at 
Lathrop Justice Field went into the dining room, he 
accompanying the justice; that they took seats atatable; 
that shortly after they were seated Judge Terry and 
his wife entered the dining room, his wife following 
him several feet in the rear; that when the wife reached 
a point nearly opposite Justice Field, she turned around 
and went our rapidly from the room, and as appeared 
from what afterward followed, she went to the car to 
get her satchel. When she returned from the car the 
satchel was taken from her and it was found to contain 
a pistol — revolver — containing six chambers, all of 
which were loaded with ball. The pistol lay on the 
top of the other articles in the satchel. The witness 
further stated that Judge Terry passed down opposite 
Justice Field to a table below where they were sitting; 
that in a few minutes whilst Justice Field was eating, 
Judge Terry rose from his seat, went around behind 
him — the justice not seeing him at the time — and 
struck him two blows, one on the side and the other 
on the back of the head; that the second blow fol- 
lowed the other immediately; that one was given with 
the right hand and the other with the left; that 
Judge Terry then drew back his hand with his fist 
clenched, apparently to give the justice a violent blow 
on the side of his head, when he (Neagle) sprang to 
his feet, calling out to Terry, ' Stop, stop ! I am an 
officer;' that Terry bore at the time on his face an ex- 
pression of intense hate and passion — the most ma- 
lignant the witness had ever seen in his life, and that 



PUBLIC SENTIMENT. 469 

he had seen a great many men in his time in such situ- 
ations, and that the expression meant Hfe or death for 
one or the other; that as he cried out these words, 
'Stop, stop! I am an officer,' he jumped between Terry 
and Justice Field, and at that moment Judge Terry 
appeared to recognize him, and instantly with a growl 
moved his right hand to his left breast, to the position 
where he usually carried his bowie knife; that as his 
hand got there the deputy marshal raised his pistol 
and shot twice in rapid succession, killing him in- 
stantly. He further stated that the position of Judge 
Field was such — his legs being at the time under the 
table and he sitting — that it would have been impos- 
sible for him to have done anything, even if he had 
been armed, and that Judge Terry had a very furious 
expression, which was characterized by the witness as 
that of an infuriated giant. He also added that his 
cry to him to stop was so loud that it could be heard 
throughout the whole room, and that he believed that 
a delay in shooting of two seconds would have been 
fatal both to himself and Justice Field. 

"The facts just stated in the testimony of Justice 
Field and of the petitioner were corroborated by the 
testimony of all the witnesses to the transaction. The 
petitioner soon afterward accompanied Justice Field 
to the car, and whilst in the car he was arrested by a 
constable, and at the station below Lathrop was 
taken by that official from the car to Stockton, the 
county seat of San Joaquin County, where he was 
lodged in the county jail. Mr. Justice Field was 
obliged to continue on to San Francisco without the 
protection of any officer. On the evening of that day, 



470 LIFE OF DAVID S. TERRY, 

Mrs. Terry, who did not see the transaction, but was 
at the time outside of the dining room, made an affi- 
davit that the kilHng of Judge Terry was murder, 
and charged Justice Field and Deputy Marshal 
Neagle with the commission of that crime. Upon 
that affidavit a warrant was issued by a justice of the 
peace at Stockton against Neagle and also against 
Justice Field, and after the latter was released by the 
United States Circuit Court on habeas corpus, upon 
his own recognizance, the proceeding against him 
before the justice of the peace was dismissed, the 
governor of the State having written a letter to the 
attorney-general of this State declaring that the pro- 
ceeding, if persisted in, would be a burning disgrace 
to the State, and the attorney-general having advised 
the district attorney of San Joaquin County to dismiss 
it. There was no other testimony whatever before 
the justice of the peace except that affidavit of -Sarah 
Althea Terry, upon which the warrant was issued. 

"In the suit of William Sharon against Mrs. Terry 
in the Circuit Court of the United States, it was ad- 
judged that the alleged marriage contract between 
her and Sharon, produced by her, was a forgery, and 
it was held that she had attempted to support it by 
perjury and subornation of perjury. She had also 
made threats during the past year and up to the time 
of the shooting of Judge Terry, that she would kill 
the circuit judge and Justice Field, and she repeated 
that threat up to the time she made her affidavit for. 
the arrest of Justice Field and Neagle; and that she 
had made such threats was a notorious fact in Stock- 
ton and throughout the State. 



PUBLIC SENTIMENT. 47 1 

"The petition was accordingly presented on behalf 
of Neagle to the Circuit Court of the United States, 
for a writ of habeas corpus in this case, alleging among 
other things that he was arrested and confined in 
prison for an act done by him in the performance of 
his duty^namely, the protection of Mr. Justice 
Field — and taken away from the further protection 
which he was ordered to give him. The writ was 
issued, and upon its return the sheriff of San Joaquin 
County produced a copy of the warrant issued by the 
justice of the peace of that county, and of the affidavit 
of Sarah Althea Terry, upon which it was issued. A 
traverse to that return was then filed in this case, 
presenting various grounds why the petitioner should 
not be held, the most important of which were that an 
officer of the United States, specially charged with a 
particular duty, that of protecting one of the justices 
of the Supreme Court of the United States, whilst en- 
gaged in the performance of his duty, could not, for 
an act constituting the very performance of that duty, 
be taken from the further discharge of his duty and 
imprisoned by the State authorities, and that when 
an officer of the United States, in the discharge of 
his duties, is charged with an offense consisting of 
the performance of those duties, and is sought to be 
arrested and taken from the further performance of 
them, he can be brought before the tribunals of the 
nation of which he is an officer and the fact then in- 
quired into. The attorney-general of the State ap- 
peared with the district attorney of San Joaquin County, 
and contended that the offense of which the petitioner is 
charged could only be inquired into before the tri- 
bunals of th^ State. 



472 LIFE OF DAVID S. TERRY. 

"The question of the jurisdiction of the national 
tribunal to interfere in the matter was elaborately 
argued by counsel, the attorney-general of the State, 
and Mr. Langhorne appearing with the district attor- 
ney of San Joaquin County, on behalf of the State, 
and Mr. Carey, United States attorney, and Messrs. 
Herrin, Mesick, and Wilson appearing on behalf of the 
petitioner. Thelatterdid not pretend that any person in 
this State, high or low, who committed a crime, might 
not be tried by the local authorities, if it were a crime 
against the State, but that, when in the performance 
of his duties, that alleged crime consisted in an act 
which is deemed a part of the performance of a duty 
devolved upon him by the laws of the United States, 
it was within the competency of the national tribunals 
to determine, in the first instance, whether that act 
was a duty devolving upon him, and if it was a duty 
devolving upon him, the officer committed no offense 
against the State, and was entitled to be discharged. 

OPINION OF THE COURT. 

"By the court. Sawyer, circuit judge — The peti- 
tioner has sued out a writ of habeas corpus, returnable 
before the court, alleging that he is unlawfully de- 
prived of his liberty, and imprisoned by virtue of a 
warrant issued by a justice of the peace of San Joa- 
quin County, in this State, charging him with a felo- 
nious homicide, whilst the act thus characterized was 
a lawful act, performed in the discharge of his duties 
as an officer of the United States, and the first ques- 
tion presented is whether this court has jurisdiction 
to inquire into the truth of this allegation. 



PUBLIC SENTIMENT. 4/3 

"As to the question of jurisdiction, section 751 R. 
S. provides that 'the Supreme Court and the Circuit 
and District Courts shall have power to issue writs of 
habeas corpus;' and section 752 further provides that 
'the several justices and judges of the said courts, 
within their respective jurisdictions, shall have the 
power to issue writs of habeas corpus for the purpose 
of an inquiry into the cause of restraint of liberty. 
There is no limit to the jurisdiction of these courts 
and judges to inquire into the restraint of liberty of 
any person, in these provisions. But section 753 pre- 
scribes some limitations, among which is 'that the 
writ shall not extend to a prisoner in jail 
unless he is in custody for an act done or committed in 
pursuance of a law of the United States, or an order, 
process, or decree of a court thereof, or in custody in 
violation of the constitution or of a law or treaty of 
the United States,' and this legislation in the language 
of the chief justice, in McArdle's case, 6 Wall., 325-6, 
in commenting upon the same provision in a prior act, 
'is of the most comprehensive character. It brings 
within the habeas corpus jurisdiction of every court 
and of every judge every possible case of privation of 
liberty, contrary to the national constitution treaties, 
or law. It is impossible to widen this jurisdiction.' 
And again, in Ex-Parte Royall, 117 U. S., 249, the 
Supreme Court says: 'As the judicial power of the 
nation extends to all cases arisinof under the consti- 
tution, the laws and treaties of the United States; as 
theprivilegesof the ^x\x.oi habeas ^^;^z<5 cannot be sus- 
pended unless when, in cases of rebellion or invasion, 
the public safety may require it; and as Congress has 



474 LIFE OF DAVID S. TERRY. 

power to pass all laws necessary and proper to carry 
into execution the powers vested by the constitution 
in the government of the United States, or in any de- 
partment or officer thereof, no doubt can exist as to 
the power of Congress thus to enlarge the jurisdiction 
of the courts of the Union, and of their justices and 
judges. That the petitioner is held under authority of 
a State cannot affect the question of the power or 
jurisdiction of the Circuit Court to inquire into the 
cause of this commitment, and to discharge him if he 
be restrained of his liberty in violation of the Consti- 
tution. The grand jurors who found the indictment, 
the court into which it was returned and by whose 
order he was arrested, and the officer who holds him 
in custody, are all, equally with citizens, under a duty, 
from the discharge of which the State could not re- 
lease them, to respect and obey the supreme law of 
the land, 'anything in the constitution and laws of any 
State to the contrary notwithstanding,' and that equal 
power does not belong to the courts and judges of the 
several States; that they cannot under any authority 
conferred by the State discharge from custody persons 
held by authority of the courts of the United States, 
or of commissioners of such courts, or by officers of 
the general government acting under its laws, results 
from the supremacy of the Constitution and laws of 
the United States. Ableman vs. Booth, 21 How., 
506; Tarble's case, 13 Wal,, 397; Robb vs. Connolly, 
III U. S., 624. 

" 'We are therefore of the opinion that the Circuit 
Court has jurisdiction upon writ of habeas corpus to in- 
quire into the cause of appellant's commitment, and to 



PUBLIC SENTIMENT. 475 

discharge him, if he be held in custody in violation of 
the Constitution.' 

"In the exercise of this jurisdiction there is no con- 
flict between the authorities of the State and the 
United States. The State in such cases is subordi- 
nate and the national government paramount, 'The 
Constitution and laws of the United States are the su- 
preme laws of the land, and to these every citizen of 
every State owes obedience, whether in his individual 
or official capacity.' Siebold's case, lOO U. S., 392; 
see also Tennessee 2^5. Davis, 100 U. S., 257-8. The 
exclusive authority of the State is now earnestly 
pressed upon our attention. In Siebold's case the 
court says: *It seems to be overlooked that a na- 
tional Constitution has been adopted in this country, 
establishing a real government therein, operating upon 
persons and territory and things; and which, more- 
over, is, or should be, as dear to every American citi- 
zen as his State government is. Whenever the true 
conception of thv-^ nature of this government is once 
conceded, no real difficulty will arise in the just inter- 
pretation of its powers. But if we allow ourselves to 
regard it as a hostile organization, opposed to the 
proper sovereignty and dignity of the State govern- 
ments, we shall continue to be vexed with difficulties 
as to its jurisdiction and authority. No greater 
jealousy is required to be exercised toward this govern- 
ment in reference to the preservation of our liberties 
than is proper to be exercised toward the State govern- 
ments. Its powers are limited in number and clearly 
defined, and its action within the scope of these powers 
is restrained by a sufficiently rigid bill of rights for the 



476 LIFE OF DAVID S. TERRY. 

protection of its citizens from oppression. The true 
interest of the people of this country requires that 
both the national and State governments shall be 
allowed, without jealous interference on either side, to 
exercise all the powers which respectively belong to 
them according to a fair and practical construction of 
the constitution. State rights and the rights of the 
United States should be equally respected. Both are 
essential to the preservation of our liberties and the 
perpetuity of our institutions. But, in endeavoring to 
vindicate the one, we should not allow our zeal to 
nullify or impair the other.' loo U. S., 394, sec. lb. 
2666-7. This cburt, then, has jurisdiction to inquire 
upon this writ into the cause of the imprisonment of 
the petitioner, and if, upon such inquiry, he is found 
to be 'in custody for an act done or omitted in pur- 
suance of a law of the United States,' then he is in 
custody in violation of the Constitution and laws of 
the United States, and he is entitled to be discharged, 
no matter from whom, or under what authority the 
process under which he is held may have issued, the 
Constitution and laws of the United States made in 
pursuance thereof being the supreme law of the land. 

"It is, therefore, only necessary to inquire and ascer- 
tain whether the petitioner is in custody for an act done 
in pursuance of a law of the United States in order 
to dispose of the case. 

"As we have seen from the statement of facts, Mr. 
Justice Field, of the United States Supreme Court, al- 
lotted to the Ninth Circuit, was traveling-officially from 
one part of his circuit to another, in pursuance of the 
requirements of the statutes of the United States, for 



PUBLIC SENTIMENT. 477 

the purpose of holding a Circuit Court. By reason of 
ihreats to his life made by dissatisfied litigants, gener- 
ally known and published in the newspapers, and 
brought to the knowledge of the United States mar- 
shal for the northern district of California, and by him 
called to the attention of the attorney-general of the 
United States, that officer directed the marshal to 
furnish the justice with protection while thus engaged 
in the performance of his judicial duties on the circuit. 
The marshal, dteming it proper, furnished the neces- 
sary protection by assigning that duty to the pe- 
titioner, who was a United States deputy marshal. 
The claim is that the petitioner, as such deputy mar- 
shal, was affording the only protection practicable to 
Justice Field in the lawful discharge of his duty when 
the homicide was committed, and that the killing was 
necessary to the preservation cf the lives of both Jus- 
tice Field and himself at the time when the fat£.l shot 
was fired. The homicide was committed at Lathrop, 
and not upon land purchased by the United States, 
with the consent of the State, for the needful uses of 
the United States, in pursuance of article i, section 8 
of the Constitution, 

"Conceding the points to be as stated, do they 
present a case of an act performed in pursuance of a 
law of the United States, subject to their jurisdiction 
and to the jurisdiction of this court, and is the petitioner 
held under an arrest on a charge of murder by the State, 
in custody, in violation of the Constitution or laws of 
the United States, within the meaning of the statute. 

"It is urged that since the homicide was committed 
in the State at large, and not in the courthouse, or 



4/8 LIFE OF DAVID S. TERRY. 

upon land within the exclusive jurisdiction of the 
United States, the question as to whether the homi- 
cide is murder is a question arising exclusively under 
the law of the State, and that it can be investigated 
and determined alone by the State courts. It is ad- 
mitted on the part of the State that the United States 
has exclusive jurisdiction over the Custom House 
Block, and "over all places purchased by the consent 
of the Legislature of the State, in which the same 
shall be, for the erection of forts, magazines, arsenals, 
dockyards and other needful buildings," in pursuance 
of section 8, article i , of the national Constitution, and 
that the State has no jurisdiction whatever of any of- 
fense committed in such place, But it is contended, 
on the contrary, that the United States has no juris- 
diction of offenders outside the lands so purchased in 
other portions of the State, but that in the State at 
large the jurisdiction of the State is exclusive. This 
proposition, like most others urged by these who insist 
on strict States' rights doctrines, wholly ignores the 
principle that there can be no legal conflict or inconsist- 
ency in matters wherein the State is subordinate and 
the United States paramount, where the constitution 
and laws of the United States are the supreme law of the 
land. We have already seen that, although in certain 
cases the courts of the United States have jurisdiction 
to discharge on habeas corpus prisoners held in cus- 
tody by the State courts in violation of the Constitu-. 
tion and laws of the United States, yet that the State 
courts "cannot under any authority conferred by the 
State discharge from custody persons held by author- 
ity of the courts of the United States or of commis- 



PUBLIC SENTIMENT. 479 

sloners of such courts, or by officers of the general 
government acting under such laws," and that this 
"results from the supremacy of the Constitution and 
laws of the United States." This principle, estab- 
lished in the Booth and Tarble cases, was recently 
properly recognized by the Supreme Court of Cali- 
fornia, when, upon the return of the writ of habeas 
corpus in Terry's case, it appeared that he was in cus- 
tody by virtue of a judgment of the United States 
Circuit Court, it declined to require the sheriff to pro- 
duce his body. As the powers and duties of the 
State and national courts are by no means reciprocal 
in this class of cases, so they are not reciprocal in the 
matter of territorial jurisdiction mentioned as claimed 
on the part of the State. The Constitution and laws 
of the United States as to these matters, wherein they 
are supreme, extend over every foot of the territory 
of the United States, and the jurisdiction of its courts 
to enforce rights derived thereunder, is as extensive 
as the territory to which they are applicable. 

"In Siebold's case, the Supreme Court, in reply to 
an argument in favor of a wide extension of State 
rights, uses the following language, peculiarly appli- 
cable to the point now under consideration: 'Some- 
what akin to the argument, it has been considered, is 
the objection that the deputy marshals authorized by 
the act of Congress to.be created and to attend the elec- 
tions, are authorized to keep the peace; and this is a 
duty which belongs to the State authorities alone. It 
is argued that the preservation of peace and good 
order in society is not within the powers confided to 
the Government of the United States, but belongs 



480 LIFE OF DAVID S. TERRY. 

exclusively to the States. Here again we are 
met with the theory that the government of the 
United States does not rest upon the soil and territory 
of the country. We think that this theory is founded 
upon an entire misconception of the nature and 
powers of that government. We "hold it to be an in- 
controvertible principle that the government of the 
United States may, by means of physical force, exer- 
cised through its official agents, execute on every foot 
of American soil the powers and functions that b'^long 
to it. This necessarily involves the power to com- 
mand obedience to its laws, and, hence, to keep the 
peace to that extent. 

"'This power to enforce its laws and to execute its 
functions in all places does not derogate from the 
power of the State to execute its laws, at the same 
time and in the same places. The one does not exclude 
the other, except where both cannot be executed at 
the same time. In that case the words of the Consti- 
tution itself show which is to yield: "This Constitu- 
tion, and all laws which shall be made in pursuance 
thereof, shall be the supreme law of the land."' (100 
U.. S., 394-5.) And again: 'The argument is based 
on a strained and impracticable view of the nature and 
powers of the government. It must execute its 
powers or it is no government. It must execute 
them on the land as well as on the sea, on things as 
well as on persons. And, to do this, it must neces- 
sarily have the power to command obedience, pre- 
serve order, and keep the peace, and no person or 
power in this land has the right to resist or question its 
authority, so long as it keeps within the bounds of its 



PUBLIC SENTIMENT. 481 

jurisdiction.* {^Ib. 396.) The power to keep the 
peace is a police matter, and the United States has 
power to keep the peace in matters affecting their 
sovereignty. 

"There can be no doubt, then, that the jurisdiction 
of the United States is not affected by reason of the 
location where the homicide occurred. If the location 
is a necessary element of jurisdiction a majority of the 
offenses created by the statutes would be out of their 
jurisdiction and the statutes creating such offenses 
would be nullities and practically useless. 

" For example, for a. quarter of a century the United 
States courts in this State were held in rented build- 
ings, owned by private parties. They had no juris- 
diction over them under the provisions of section 8 of 
article i of the national Constitution, and no jurisdic- 
tion other than that had over portions of the country 
to which the constitution and its laws extended. Had 
an assault been committed in open court upon the 
judge in that building, and the assailing party been 
slain by the marshal in protecting the judge under cir- 
cumstances to excuse or justify the homicide, would it 
be pretended that the court would have no jurisdic- 
tion to protect him from interference by the State 
government.'* Or have the United States and their 
courts no jurisdiction over the offense of resisting- a 
United States marshal in the lawful execution of the 
process of the courts, or over the crime of counterfeit- 
ing the coin or forging the bonds or other securities 
of the United States, or other offenses against the 
laws, because the offense was not committed in a place 
under the exclusive jurisdiction of the United States? 
Such a claim would be simply preposterous. 



482 LIFE OF DAVID S. TERRY. 

"In the case of Tennessee vs. Davis the defendant 
was indicted for murder for kihing one Haynes while 
he was engaged in discharging his duties as a deputy 
collector of internal revenue of the United States, 
and which killing, Davis claimed, was in self-defense. 
This case was removed to the Circuit Court of the 
United States, under section 643, R. S. It was con- 
tended that this act was an encroachment upon States' 
rights since it took away the right of the State to de- 
termine and execute its own criminal laws, and was 
therefore unconstitutional. The Supreme Court sus- 
tained the act. It is held 'that the United States is 
a government with authority extending over all the 
territory of the Union, acting upon the State and the 
people of the State.' In deciding the case the court 
said: 'As was said in Morton vs. Hunter (i Wheat., 
363), the general government must cease to exist 
when it loses the power of protecting itself in the 
exercise of its constitutional powers. It can act only 
through its ofiEicers and agents, and thev must act 
within the State. ^ If, when acting, ana within the 
scope of their authority, those officers can be arrested 
and brought to trial in a State court for an alleged 
offense against the laws of the State, yet warranted 
by the Federal authority they possess, and if the 
general government is powerless to interfere at once 
for their protection — if their protection must be left to 
the action of the State court — the operations of the 
general government may at any time be arrested at 
the will of one of its members. The legislation of a 
State may be unfriendly. It may affix penalties to 
acts done under the immediate direction of the na- 



PUBLIC SENTIMENT. 483 

tional government and in obedience to its laws. It 
may deny the authority conferred by those laws. The 
State court may administer not only the laws of the 
State, but equally Federal law, in such a manner as to 
paralyze the operations of the government, and even 
if, after trial and final judgment in the State court, a 
case can be brought into the United States court for 
review, the officer is withdrawn from the discharge of 
his duty during the pendency of the prosecution, and 
the exercise of acknowledged Federal power arrested. 

"The expositions of the territorial extent of the 
jurisdiction of the general government are authorita- 
tive and conclusive, and the result is that, whenever 
the Constitution and laws of the United States oper- 
ate at all, the State laws in conflict with them are sub- 
ordinate, and those of the United States supreme and 
paramount. 

" *We do not think that such an element of weak- 
ness is to be found in the Constitution. The United 
States is a government with authority extending over 
the whole territory of the Union, acting upon the 
States and upon the people of the States. While it is 
limited in the number of its powers, so far as its 
sovereignty extends, it is supreme. No State govern- 
ment can exclude it from the exercise of any authority 
conferred upon it by the Constitution, obstruct its 
authorized officers against its will, or withhold from it 
for a moment the cognizance of any subject which 
that instrument has committed to it.' — Tennessee vs. 
Davis, 100 U. S. , 262-3. 

There are numerous cases reported in the books 
where parties arrested for offenses under the State 



484 LIFE OF DAVID S. TERRY. 

laws, for acts performed in the discharge of duties im- 
posed by the laws of the United States, have been 
discharged from imprisonment on habeas corpus by 
the United States courts, in consonance with these 
principles now so authoritatively established by the 
Supreme Court of the United States, in the cases 
cited, and others in the same line. 

"Thus in Ex-parte Jenkins, and others, deputy 
United States marshals, who were arrested on the 
warrant of a justice of the peace in Pennsylvania for 
shooting and wounding a negro who resisted an arrest, 
attempted under a warrant issued by the United States 
Court for a fugitive slave, Mr. Justice Greer of the 
United States Supreme Court took jurisdiction and 
discharged the petitioners, under the act of 1835, since 
carried into the Revised Statutes, as a part of section 
753, under which this case arises. After their dis- 
charge they were arrested again, in a suit by the negro 
for trespass, upon a warrant issued by a judge of the 
Supreme Court of Pennsylvania, and again discharged 
oxi habeas corpus by the United States Circuit Court. 
After this they were indicted for the shooting and 
wounding of the negro by the grand jury of Luzerne 
County, and a third time released on habeas corpus. 
Ex-parte Jenkins, 2 Wall Jr, p. 521 et seq. In the 
first of these cases Mr. Greer observes, 'What then 
have we the power to do on the return of the writ?' 

"The writ of habeas corpus is the highest preroga- 
tive writ known to the common law, the great object 
of which is the liberation of those who may be in 
prison without sufficient cause. It is in the nature of 
a writ of error, to examine the legality of a commit- 



PUBLIC SENTIMENt. 485 

ment; it brings the body of the prisoner up, together 
with the cause of his commitment. The court can, 
undoubtedly, inquire into the sufficiency of that cause. 
. . . 'Warrants of arrest issued on the application 
of private informers, may show on their face^a prtma- 
facie charge sufficient to give jurisdiction to the justice; 
but it may be founded on mistake, ignorance, malice 
or perjury. To put a case very similar to the present, 
A tells B that he has seen C kill D; B runs off to a 
justice, swears to the murder boldly without any 
knowledge of the fact, and takes out a warrant for C, 
who is arrested and imprisoned in consequence thereof 
C prays a writ of habeas corpus and shows that he 
was sheriff of the county, and hanged B in pursuance 
of a legal warrant. If a court could not discharge a 
prisoner in such a case, because the warrant is regular 
on its face, the writ of habeas corpus is of little use.' 

" 'The authority conferred on the judges of the 
United States by this act of Congress gives them all 
the power that any other court could exercise under 
the writ of habeas corpus, or gives them none at all. 
If under such a writ they may not discharge their 
officer when imprisoned, "by any authority," for 
an act done in pursuance of a law of the United 
States, it would be impossible to discover for what 
useful purpose the act was passed. Is the prisoner 
to be brought before them only that they may ac- 
knowledge their utter impotence to protect him?' . . 

" In Ex-parte Robinson, Mr. Justice McLean held 
that 'a writ of habeas corpus may issue to relieve an 
officer of the Federal government who has been im- 
prisoned for the performance of his duty.* (6 McLean, 

32^ 



486 ' LIFE OF DAVID S. TERRY. 

355}. In the course of the decision the learned 
justice observes: 'It is a general principle of law, to 
which I know of no exception, that the laws of every 
government shall be constructed by itself, and such 
construction is acted upon by the judiciary of all other 
countries. By the Federal Constitution, the judicial 
power of the United States is declared to be vested in 
one Supreme. Court and in such inferior courts as 
the Congress may from time to time order and establish. 
Under this provision the judiciary of the Union gives 
the construction to the laws which is obligatory upon 
the*State tribunals. The Constitution again declares: 
" The Constitution and laws of the United States which 
shall be made in pursuance thereof, and all treaties 
made, or which shaTl be made under the authority of 
the United States, shall be the supreme law of the 
land; and the judges in every State shall be bound 
thereby, anything in the constitution or laws of any 
State to the contrary notwithstanding." ' {lb., 362.) 
Thus it is the exclusive prerogative of the national 
courts to finally determine whether an act performed 
by one of the officers of the United States, and espe- 
cially an officer of the court, is 'done ... in pur- 
suance of a law of the United States,' or whether, 
when under arrest for acts performed in connection 
with his office, he is *in custody in violation of the 
Constitution or of a law of the United States.' (2 
Abb. 365.) 

"In the' case of Roberts vs. Jailer, Lafayette 
County, Kentucky, a special deputy United States 
marshal was arrested under the State laws, on a 
charge of murder for a homicide committed by him 



PUBLIC SENTIMENT. 487 

in attempting to arrest one Cull upon a warrant issued 
by a commissioner of the United States Circuit Court, 
for offenses charged to have been committed under 
the internal revenue laws. Upon the hearing, the 
United States Circuit Court found that the homicide 
was committed in the performance of 'an act done in 
pursuance of a law of the United States, or of a proc- 
ess of a court or judge of the same,' and discharged 
the petitioner. The question of the jurisdictioQ of the 
court and the facts were elaborately discussed. 

"So in re Ramsey, 2 F'lippin, 45, the prisoner was a 
deputy United States marshal, in custody, by order' of a 
State court on a charge of murder, the homicide having 
been committed in an attempt to arrest, upon a warrant 
issued by the United States courts, the party slain. 
The court found that the act was done in pursuance 
of a law of the United States; that petitioner was 
justified in the act which he performed, and discharged 
him. See also to the same effect in re Neill, 8 
Blatch, 167; in re Farland, i Abb., 140; Electorial 
College of South Carolina, i Hughes, 571; in re 
Hunt, 2 Flip., 510. See cases collected in volume 
29, Myers' Fed. Decisions 698. Thus it appears to 
be settled beyond controversy that, where a party is 
in custody of State authority for an act done or 
omitted to be done in pursuance of any specific pro- 
vision of a statute of the United States imposing a 
duty upon him, or for an act performed justifiable 
by the circumstances of the case, in order to enable 
him to perform that duty, or in the execution of any 
order, or process, or decree of a court of the United 
States, or a judge thereof, the courts of the United 



488 LIFE OF DAVID S. TERRY. 

States have jurisdiction to discharge him on habeas 
corpus, under section 753 of the revised statutes. 

"The only remaining questions to determine are: — 

**i. Was the homicide now in question committed 
by petitioner while acting in charge of a duty imposed 
upon him by the Constitution or laws of the United 
States, within the meaning of section 753 of the revised 
statutes ? 

"2. Was the homicide necessaryor was it reasonably 
apparent to the mind of the petitioner, at the time^ 
that, under the circumstances then existing, the kill- 
ing was necessary in order to a full and complete dis- 
charge of such duty .** 

"It is urged that there is no statute which specifi- 
cally makes it the duty of a marshal or a deputy mar- 
shal to protect the judges of the United States courts 
while out of the court room, traveling from one point 
to another in the circuit on official business, from the 
violence of litigants who have become offended at decis- 
ions made by such judges in the performance of their 
judicial duties adverse to them; and that marshals or 
deputies so engaged are not within the provisions of 
section 733 of the revised statutes. 

"It will be observed that the language of the provis- 
ion of section 753, is* an act done . . . in pursuance 
of a law of the United States,' not in pursuance of a 
statute of the United States. The statutes passed by 
Congress by no means constitute all the law of the 
United States. The principles of the common law, 
so far as they are applicable, and as they have been 
recognized and as they are in force under the Consti. 
tution, not modified or repealed by the national stat- 



PUBLIC SENTIMENT. 489 

utes and the usages generally long recognized, are as 
much a portion of the laws of the United States as 
are the statutes themselves. So, also, where the stat- 
utes point out duties, provide for the accomplishment 
of many objects, or confer authority in general terms, 
they carry with them, by implication, all the powers, 
duties, exemptions, and authority necessary to carry 
out and accomplish all the purposes and objects in- 
tended to be secured thereby. 

"Says the Supreme Court, in Tennessee vs. Davis, 
100 U. S., 264, quoting with approbation from Chief 
Justice Marshall: — 

"'It is not unusual for a legislative act to involve 
consequences which are not expressed. An officer, 
for example, is ordered to arrest an individual. It is 
not necessary, nor is it usual, to say that he shall not 
be punished for obeying this order. His security is 
implied in the order itself. It is no unusual thing for 
an act of Congress to imply without expressing this 
very exemption from State control.' The collectors 
of the revenue, the carriers of the mail, the Mint 
establishment, and all those institutions which are 
public in their nature, are examples in point. It has 
never been doubted that all who are employed in 
them are protected while in the line of their duty. 
And yet this protection is not- expressed in any act of 
Congress. It is incidental to, and is implied in, the 
several acts by which those institutions are created, 
and is secured to the individuals employed in them by. 
the judicial power alone; that is, the judicial power is 
the instrument in administering this security.' 

"If the officers referred to in the preceding pas- 



490 LIFE OF DAVID S. TERRY. 

sage are to be protected while in the line of their duty, 
without any special la\y or statute requiring such pro- 
tection, are not the judges of the courts — the princi- 
pal officers in a department of the government, second 
to no other — also to be protected, and are not their 
executive subordinates — the marshals and their depu- 
ties — to be shielded from harm by the national laws 
while honestly engaged in protecting the heads of 
the courts by warding off" assassination? 

"When it was argued in Siebold's case that it was 
not in the power of the United States to authorize 
the United States marshals to * keep the peace' at 
Congressional elections, 'that the preservation of 
peace and good order in society is not within the 
powers confided to the government of the United 
States, but belonged exclusively to the State,' we 
have already seen the answer of the Supreme Court 
to that argument in cases where the rights and inter- 
ests of the United States Government were involved 
in the matter of keeping the peace. 'We hold it to 
be an incontrovertible principle,' said the court, 'that 
the government of the United States may, by means 
of physical force, exercised through its official agents, 
execute on every foot of American soil the powers 
and functions that belong to it. This, necessarily, in- 
volves the power to command obedience to its laws, 
and hence the power to keep the peace to that extent. 
And again: 'Why do we have marshals at all if they 
cannot physically lay their hands on persons and 
things in the fiprformance of their proper duties? 
What functions can they perform if they cannot use 
force? In executing the process of the courts must 



PUBLIC SENTIMENT. 49 I 

they call upon the nearest constable for protection? 
Must they rely on him to use the requisite compul- 
sion and to keep the peace, whilst they are soliciting 
and entreating the parties and bystanders to allow 
the law to take its course? This is the necessary 
consequence of the position that they assume. If we 
indulge in such impracticable views as these, and keep 
on refining and re-refining, we shall drive the national 
government out of the United States, and relegate it 
to the District of Columbia, or^ perhaps, some foreign 
soil. We shall bring it back to a condition of greater 
helplessness than that of the old confederation.' (loo 

U. S.. 395-6.) 

"In this particular case the petitioner, long before 
he reached Lathrop, endeavored, through the conduc- 
tor and the proprietor of the eating house at that 
place, to have 'a constable' in readiness on the arrival 
of the train to keep the peace, but without success. 
When too late to prevent the tragedy the constable 
appeared and arrested the petitioner for endeavoring 
to perform the duty which it is now claimed devolved 
exclusively upon himself or some other peace officer of 
the State. 

"Had the United States in this instance relied upon 
another government — the State of California — to keep 
the peace as to one of their most venerable and dis- 
tinguished officers — one of the judges of their highest 
court — in relation to matters concerning the perform- 
ance of his official duties, they would have leaned 
upon a broken reed, and there would now in all proba- 
bility be a vacancy on the bench of one of the most 
august judicial tribunals in the world, and the deceased 



492 LIFE OF DAVID S. TERRY. 

— the would-be-assassin — might perhaps be a tenant 
of the Stockton jail, to be disposed of by another 
government. The case affords a striking illustration 
of the necessity of the United States to protect their 
own officers while in the discharge of their duties, and 
by such protection protect the nation itself 

"The result was that instead of arresting the co- 
conspirator in the contemplated murder — the wife of 
the deceased, armed with a loaded revolver till relieved 
of it by a citizen — threatening death to Justice Field, 
calling upon the bystanders to aid her, and attempting 
to enter the car, with the avowed purpose of com- 
passing his death, the officer of the United States, as- 
signed by his government to the sp2cial duty of pro- 
tecting the justice's life against these very parties, 
while in the actual performance of the duties so as- 
signed him, was himself arrested without warrant, and 
disarmed by an inferior officer of the State, and inter- 
rupted in the discharge of those momentous duties, 
thereby leaving his charge helpless, and without the 
protection provided by the government he was serv- 
ing, at a time when such protection seemed most 
needed. 

"Had Neagle been a deputy sheriff of San Joaquin 
County, assigned by his superior to this very duty 
of protecting the life of Justice Field, under the State 
laws, committed the homicide in all other respects 
under precisely the same circumstances, would he have 
been arrested by the constable of Lathrop, without a 
warrant, and disarmed with such inconsiderate haste, 
and thereby prevented from further performing his 
duty to protect the life and person of Justice Field^ 



PUBLIC SENTIMENT. 493 

thus leaving him to pursue the remainder of his jour- 
ney without protection? Yet the constable was in- 
formed that Neagle was acting as a deputy United 
States marshal, under the orders of his superiors, for 
the protection of the life and person of a justice of 
the Supreme Court of the United States. 

"We do not wish to be regarded as now calmly and 
deliberately looking back upon the scene and sitting 
in judgment upon the action of the constable, or as pass- 
ing censure upon his zeal. He doubtless, in the emer- 
gency, where time for consideration was short and the 
facts not fully appreciated, acted according to the best 
dictates of his necessarily hastily-formed judgment. 
But when the State now comes after an arrest upon a 
warrant issued upon such flimsy testimony as that pre- 
sented, and deliberately claims the exclusive right to 
sit in judgment upon the acts of the United States 
deputy marshal, performed, not upon his own inter- 
pretation of the law, but upon that of the attorney- 
general of the United States, who may be presumed 
to possess some knowledge of his powers and duties, 
it is well to consider the circumstances from a stand- 
point presenting a view of both sides of the question. 

"In the matters of the public peace, in which the 
national government is concerned, the marshals and 
deputy marshals, within the scope of their authority, 
are national peace officers, with all the statutory and 
common law powers appertaining to peace officers. 
Is not the national public peace involved when a deadly 
assault is unexpectedly made upon the judge in open 
court, in which the marshal and his deputies, seeing 
the assault, are both authorized and bound on their 



494 LIFE OF DAVID S. TERRY. 

own motion, without any previous order or command, 
to interpose, and use sufficient force to quell the dis- 
turbance and subdue the parties making it? Yet 
where is there any specific provision of the statute im- 
posing that duty upon them? The marshal is required 
to attend court, but it is not provided what he shall do 
in court. To what end shall he be in court if not to 
keep order, and if necessary to protect the judges from 
violence, by force or any other necessary practicable 
means? But there is no statute requiring it in terms. 
"The general duties of marshals are provided for 
in section 737, which reads as follows: Tt shall be the 
duty of the marshal of each district to attend the Dis- 
trict and Circuit Courts when sitting therein and 
execute throughout the district all lawful precepts 
directed to him and issued under the authority of the 
United States, and he shall have power to command 
all necessary assistance in the execution of his duty.' 
There is no more authority specifically conferred upon 
the marshal by this section to protect the judge from 
assassination in open court, without a specific order or 
command, than there is to protect him out of court 
when on the way from one court to another in the dis- 
charge of his official duties. And the assassination in 
court, as well as out, might well be accomplished 
before the judge would be aware of his danger, and 
before it would be possible to give a command or order 
to the marshal for his protection. The authority 
exists in the one case, as well as the other, from the 
nature of the office and the powers arising under the 
common law, recognized and in use in the country, 
and in the nature of things inherent in the office. 



PUBLIC SENTIMENT. 495 

The very idea of a government composed of execu- 
tive, legislative, and judicial departments necessarily 
"comprehends the power to do all things through its 
appropriate officers and agents, within the scope of its 
general governmental purposes and powers requisite 
to preserve its existence, protect it and its ministers, 
and give it complete efficiency in all parts. It 
necessarily and inherently includes power in its execu- 
tive department to enforce the laws, keep the national 
peace with regard to its officers while in the line of 
their duty, and protect by its all-powerful arm all the 
other departments and the officers and instrumentali- 
ties necessary to their efficiency while engaged in the 
discharge of their duties. 

"In language attributed to Mr. Ex-Secretary Bayard, 
used with reference to this very case, which we quote, 
not as a controlling judicial authority, but for its in- 
trinsic sound, solid, common sense: 'The robust and 
essential principles must be recognized and proclaimed, 
that the inherent powers of every government which 
is sufficient to authorize and enforce the judgments of 
its courts are equally, and at all times, and in all 
places, sufficient to protect the individual judge who 
fearlessly and conscientiously in the discharge of his 
duty pronounces those judgments.' 

"Our system of jurisprudence is derived from and 
founded upon that of England, and our judges and 
officers are substantially the same. They have cor- 
responding duties imposed upon them, and are in- 
herently invested with correspondingexecutive powers, 
to enable them to effectively perform their duties. 
Many of their common-law duties have been per- 



496 LIFE OF DAVID S. TERRY. 

formed, and common-law powers have been exercised 
without specific or statutory direction, and without 
question from the foundation of our government, and 
the common-law principles governing them, except so 
far as inapplicable or modified by statute, still remain 
in force. 

"The observation of the Supreme Court of Cali- 
fornia in the estate of Apple, 66, Cal., 431, in which 
State a code has been adopted with respect to the 
common law not abrogated or modified by the code is 
applicable here. Said the court: 'The code estab- 
lishes the law of this State respecting the subject 
to which it relates; but this of course does not mean 
that there is no law with respect to such subjects 
except that embodied in the code. When the code 
speaks its provisions are controlling, and they are to 
be liberally construed with a view to effect its objects 
and promote justice — the rule of the common law that 
statutes in derogation thereof are to be strictly con- 
strued having been abolished here — but where the 
code is silent the common law governs.' So here, 
where the duties of the marshal are not limited or spe- 
cifically defined by the statute, we must look to the 
power and duties of sheriffs at common law for them 
so far as those duties come within the purpose and 
powers of the national government. 

"There are many acts and duties daily performed by 
the marshals, and by other officers, that are not spe- 
cifically pointed out or defined by the statute. The 
marshals are in daily attendance upon the judges and 
performing official duties in their chambers. Yet no 
statute specifically points out those duties or requires 



PUBLIC SENTIMENT. 497 

their performance. Indeed, no such places as cham- 
bers for the circuit judges or circuit justices are 
mentioned at all in the statutes. The judges' cham- 
bers do not appear to have any 'local habitation' 
The justices of the Supreme Court at Washington 
have, in fact, no chambers otherwise than as 
they study and do their work out of court at a 
room in their own residences. We have in the 
San Francisco courthouse rooms that we call cham- 
bers, in which the work of the judges out of court is 
in part, but not all, performed. I apprehend that the 
marshal would as clearly be authorized to protect the 
judges here in chambers as in the court room. All 
business done out of court by the judge is called 
chamber business. But itis not necessary to be done in 
what are usually called chambers. Chamber business 
may be done, and often is done, on the street, in the 
judge's own house, at the hotel where he stops when 
absent from home, or it rnay be done in transitu, on 
the cars in going from one place to another within the 
proper jurisdiction to hold court. Mr. Justice Field 
could as well and as authoritatively issue a temporary 
injunction, grant a writ of habeas corpus, an order to 
show cause, or do any other chamber business for the 
district in the dining room at Lathrop or in the cars as 
at his chambers in San Francisco or in the court room. 
He could have made a writ of habeas corpus return- 
able before himself on the car and lawfully heard and 
decided the case while on his passage to San Francisco. 
The chambers of the judge, where chambers are pro- 
vided, are not an element of jurisdiction, but are a 
convenience to the judge and to suitors, where the 



498 LIFE OF DAVID S. TERRY. 

judge at proper times can be readily found and the 
business conveniently transacted. But the chambers 
of the judge as a legal entity are something of a myth. 
For the purposes of jurisdiction the chambers of the 
judge are wherever he happens to be in his circuit or 
district when the exigencies of the case call for the 
transaction of chamber business, and a judge is as 
clearly engaged in the discharge of the duties of his 
office when going from one place of holding court t > 
another for the purpose of holding court, and just a-; 
much entitled to protection from his own govern m.MU 
against murderous or other assaults, from despc^ratc 
suitors, on account of his judicial action, as when 
engaged in business at chambers or in holding co irt. 
In England, whence we derive our judicial system, the 
high sheriff of the shire was the keeper of the king's 
peace — that is to say, the keeper of the peace of the 
sovereignty which the king represents. So here, I 
take it, under the authorities cited, the marshal is the 
keeper of the peace of the government he represents, 
within the scope of the supreme powers of that govern- 
ment. In England, in early days, it was the duty in 
every shire of the sheriffs not only to attend the 
courts, but to attend the judges through their circuits. 
They met the judges at the border of the shire and 
attended them till they left it at the border of another. 
(Dalton, on the Office and Authority of Sheriffs, chap- 
ter 98, page 369, published in 1682. See also 40 Alb. 
Law Journal, 161.) Such is also understood to have 
been the practice in early days in a number of the 
States, From the advancing state of civilization this 
practice has, doubtless, generally become unnecessary 



PUBLIC SENTIMENT. 499 

for the safety of the judges, and it has fallen into 
desuetude. But it does not follow that the power to 
thus protect them has been abolished, or become ex- 
tinguished. It simply remains latent, ready to be 
called into action whenever the exigencies of the case 
or times require it. And how could there possibly be 
a more urgent occasion for reviving the practice than 
the recent journey of Justice Field to Los Angeles 
and return on official business.'* 

"Upon general, immutable principles, the power 
must be necessarily inherent in the executive depart- 
ment of any government worthy the name of govern- 
ment, to protect itself in all matters to which its 
authority extends; and this necessarily involves the 
power to protect all the agencies and instrumentalities 
necessary to accomplish the objects and purposes of 
that government. In the national government of the 
United States the judiciary constitutes one, at least, of 
its most important branches. Unlike the judiciary of 
other nations, it is invested with the jurisdiction to 
pass, finally and conclusively, upon the powers of the 
legislative and executive departments of the govern- 
ment and to confine them within their constitutional 
limits. It is, therefore, the balance-wheel of the 
national government that keeps it running regularly 
and s;noothly in its proper channels. Impotent, in- 
deed, must be the executive branch of the government 
if it is not empowered to protect the lives of the judges 
of the highest branch of this judiciary from assault 
and assassination, on account of their judicial decision, 
by desperate, disappointed litigants, while passing 
from point to point within their territorial jurisdiction, 



500 LIFE OF DAVID S. TERRY. 

in the discharge of their high functions and duties. 
We cannot think the power can be wanting, even if 
there were no constitutional or statutory provision 
governing the case. It seems impossible that the 
national government should be left to the mercy, good 
will, or complacency of the State, to afford that pro- 
tection to its judges that the United States, if worthy 
to be called a nation, are bound themselves to furnish. 
" But we are not without constitutional and statutory 
provisions, broad enough and specific enough, as we 
think, to cover the case. The national Constitution, 
providing a government for 65,000,000 of people, 
covers a very few pages; but it seems to be amply 
sufficient for the purposes intended. In prescribing 
the duties of the President, in the terse but compre- 
hensive language of section 3 of article 2, it provides 
that *he shall take care that the laws be faithfully 
executed.' This makes him the executive head of 
the nation and gives him all the authority necessary 
to accomplish the purpose intended — all the authority 
necessarily inherent in the position, not otherwise 
limited. Congress, in pursuance of powers invested 
in it, has provided for seven depirtments, as subordi- 
nate to the President, to aid him in performing the 
executive functions conferred upon him. Section 346 
R. S. provides that ' one of the executive departments 
shall be known as the Department of Justice,' and it 
provides that there shall be 'an attorney-general, who 
shall be the head thereof.' He has general supervision 
of the executive branch of the national judiciary, and 
section 362 provides as a portion of his powers and 
duties * that the attorney-general shall exercise general 



PUBLIC SENTIMENT. 5OI 

superintendence and direction over the attorneys and 
marshals of all the districts in the United States and 
Territories as to the manner of discharging their 
respective duties, and the several district attorneys 
and marshals are required to report to the attorney- 
general an account of their official proceedings and of 
the state and condition of their respective offices, in 
such time and manner as the attorney-general shall 
direct.' Section 788 R. S. provides that 'the mar- 
shals and their deputies shall have in each State the 
same powers in executing the laws of the United 
States as the sheriffs and their deputies may have by 
law in executing the laws thereof By section 817 of 
the penal code of this State the sheriff is a 'peace offi- 
cer.* By section 4170, political code, he is *to pre- 
serve the peace' and 'prevent and suppress breaches 
of the peace.' The marshal is, therefore, in accord- 
ance with the decision of the Supreme Court already 
referred to, and under the provisions of the statute 
above cited, a 'peace officer,' so far as keeping the 
peace in any matter wherein the national powers of 
the United States are concerned, and as to such matters 
he has all the powers of a sheriff as a peace officer 
under the laws of the State. He is, in such matters, 
'to preserve the peace,' and 'prevent and suppress 
breaches of the peace.' An assault or an assassination 
of a judge of the United States court, while engaged 
in any matter pertaining to his official duties, on ac- 
count or by reason of his judicial decisions, is a breach 
of the peace affecting the authority and interests of 
the United Stares, and within the jurisdiction and 
power of the marshal or his deputies to prevent as a 
\3 



502 LIFE OF DAVID S. TERRY. 

peace officer of the national government. An assault 
upon Mr. Justice Field, while engaged in and by 
reason of the discharge of his judicial duties, is not 
merely an assault upon his person as a man. It is an as- 
sault upon the national judiciary, which he represents, 
and through itanassaultupon the authority of the nation 
itself It is necessarily a breach of the national peace. 
As a national peace officer under the conditions indi- 
cated, it is the duty of the marshal and his deputies to 
prevent a breach of the national peace by the assault 
upon the authority of the United States in the person 
of a judge of its highest court while in the discharge 
of his duty. If this is not so, in the languge of the 
Supreme Court before cited, ' Why do we have mar- 
shals at all?' What useful functions can they perform 
in the economy of the national government .'* 

"The Constitution of the United States provides for 
a Supreme Court, with jurisdiction more extensive 
in some particulars than that conferred on any other 
national judicial tribunal. If the executive depart- 
ment of the government cannot protect one of these 
judges while in the discharge of his duty, from assas- 
sination by disappointed suitors on account of his 
judicial action, then it cannot protect any of them, 
and all the members of the court may be killed and 
the court itself exterminated, and the laws of the 
nation, by reason thereof, remain unadministered and 
unexecuted. The power and duty imposed on the 
president to 'take care that the laws are faithfully 
executed' necessarily carries with it all power and 
authority necessary to accomplish the object sought 
to be attained, and, certainly, the power and duty to 



PUBLIC SENTIMENT. 503 

protect from the deadly assaults of desperate suitors 
the lives of the judges of the highest court in the 
nation, while engaged in the lawful discharge of their 
duties. 

"As we have before seen, neither Constitution nor 
statutes can or do anticipate and point out, specifically, 
every possible right or duty to be covered and se- 
cured. They must necessarily be general. In the 
passage already cited, from Tennessee vs. Davis, the 
Supreme Court, in speaking of certain officers, says: 
'It has never been doubted that all who are employed 
in them are protected while in the line of their duty; 
and yet this protection is not expressed in any act of 
Congress. It is incidental to, and is implied in, the 
several acts by which those institutions are created, 
and is secured to the individuals employed by the 
judicial power alone; that is, the judicial power 
is the instrument employed by the government 
in administering this security.' (loo U. S., 265.) 
And in United States vs. McDaniel, 7 Pet., 14, similar 
views were expressed. Said the court: 'A practical 
knowledge of the action of any of the great depart- 
ments of the government must convince every person 
that the head of a department in the distribution of its 
duties and responsibilities is often compelled to exer- 
cise his discretion. He is limited in the exercise of 
his powers by law; but it does not follow that he must 
show a statutory provision for every act he does. No 
government could be administered on such principles. 
There are numberless things that neither can be antic- 
ipated nor defined, and which are essential to the 
proper action of the government.' Thes'e observa- 



504 LIFE OF DAVID S. TERRY. 

tions are especially and forcibly applicable to the terse 
but very comprehensive provisions of the Constitution 
and of the several statutes cited, as to the powers and 
duties of the President, the attorney-general, and the 
marshals. 

"The act of the attorney-general in directing the 
United States marshal to protect the life of Mr. Jus- 
tice Field against the assaults of the deceased and his 
wife are in legal contemplation the act of the Presi- 
dent. The President speaks and acts through the 
head of the several executive departments in relation 
to subjects which appertain to their respective duties. 
They are but the subordinates of the President, wield- 
ing his power. (Wilcox vs. Jackson, 13 Pet., 513; U. 
S. vs. Cutter, 2 Curtis, 617.) 

"In the former case, relating to a reservation of land 
by the Secretary of War, the court said: 'Now, al- 
though the immediate agent in requiring this reser- 
vation was the Secretary of War, yet we feel justified 
in presuming that it was done by the approbation and 
direction of the President. The President speaks and 
acts through the heads of the several departments in 
relation to their respective duties.' See also 7 Atty.- 
Gen. Opinions, 480-1; lb., 433-479; Confiscation 
Cases, 20 Wal, 108-9; U. S. vs. Ellason, 16 Pet., 93. 

" By section 788, revised statutes, and the several 
provisions of the statutes of California there cited, 
the United States marshal is made a peace officer, and 
as such he is authorized to preserve the peace, so far 
as a breach of the peace affects the authority of the 
United States and obstructs the operations of the 
government and its various departments. The courts 



PUBLIC SENTIMENT. 505 

must, from the nature of things, be enabled fully to 
perform all their functions imposed upon them by the 
Constitution and laws without hindrance or obstruc- 
tion, and they must have the inherent power to protect 
themselves by and through their executive offices, 
under the direction and supervision of the attorney- 
general and President, against obstruction and hin- 
drance in the performance of their judicial duties. An 
assault upon a judge in court or a judge out of court, 
while in the performance of his duty, induced by his 
judicial action and intended or calculated to obstruct 
him in or deter him from a free and full discharge of 
his duty, is. a breach of the national peace, affecting 
the sovereignty of the nation so conferred upon him, 
and as a national peace officer to prevent such breach 
of the peace. Under the State laws deputy sheriffs, 
when occasion requires, constables and police officers 
of cities are assigned to certain districts, to watch over 
the safety of the citizens and to guard and protect 
their persons and property from assault, destruction 
or injury — in short, to prevent crimes, etc. These 
officers in cities are found everywhere, night and day, 
guarding the citizen and his property from injury. So 
the attorney-general, under the provisions in the 
statute cited, and the President, under the provisions 
of the Constitution, requiring him to see that the laws 
are faithfully executed, are authorized and empowered 
to direct the assignment by the marshal of any deputy 
to perform any special national police duty within his 
jurisdiction arising out of the statutes, whether by 
express provision or necessary implication, and under 
any power necessarily inherent in the President and 



5o6 LIFE OF DAVID S. TERRY. 

government, in order to give full effect and efficiency 
to the government or any of its departments. It has 
never, so far as we are advised, been disputed that a 
marshal or deputy marshal is authorized to protect the 
judge and preserve order in open court, even by the 
use of force, without any special order or command; 
as part of the duties necessarily inherent in his office; 
yet, as we have already seen, there is no more specific 
statutory authority for so preserving order and pro- 
tecting the judge in court than for performing the 
same duty under proper conditions for a judge engaged 
in performing his duties, of whatever nature, out of 
court. 

"It is argued by one of the counsel on behalf of 
the State that these matters pertain exclusively to the 
peace of the State, and that the State has not onl)^ 
power to preserve the public peace, but that it is amply 
capable of performing this service; that it is its duty 
to do it; that the threats of the deceased were matters 
of public notoriety, and that by calling the powers of 
the State into action Justice Field's life might have 
been protected by the State, and there would have 
been no necessity whatever for what is called on the 
part of the State the illegal action of the United 
States marshal. It may be conceded, and it is un- 
doubtedly true, that it was an imperative duty of the 
State to preserve the public peace and to amply protect 
the life of Mr. Justice F'ield, but itdid not do so. Where 
would Mr. Justice Field have been to-day had he relied 
solely upon the State to perform her conceded im- 
perative duty? 

"Not having performed that duty while on his 



• tUBLlC SENTIMENT. 50^ 

journey in discharge of his duty does a complaint now 
come with a good grace from the State against the 
United States for performing it for her, as well as for 
the national government, by protecting one of their 
most distinguished judicial officers through one of 
their own officers in the only manner in which it could 
have been effectively performed ? 

"In the present case, and on this official journey, 
there was a necessity for the kind of protection 
afforded Mr. Justice Field, for no other kind would 
have been adequate. The occasion required a pre- 
ventive remedy. 

"The use of the State police force would have been 
impracticable, as the powers of the sheriff would have 
ended at the borders of his county, and of other town- 
ship and peace officers at the boundaries of their re- 
spective townships and cities. Only a United States 
marshal or his deputy could exercise those official 
functions throughout the United States judicial dis- 
trict, and, as we have seen, the powers exercised con- 
cerning matters affecting the peace of the national 
government, and if the national government has no 
authority to act in the premises it certainly ought to 
have such power. 

'* The only remedy suggested on the part of the 
State was to arrest the deceased, and hold him to bail 
to keep the peace, under section 706 of the penal 
code, the highest limit of the amount of bail being 
$5,000. But, although the threats are conceded to 
have been publicly known in the State, no State 
officer took any means to provide this flimsy safe- 
guard. 



508 LIFE OF DAVID S. TERRYt 

"Perhaps counsel intended to intimate that it was 
not the duty of the State, but of Mr. Justice Field 
himself, to set in motion proceedings under the law 
furnished by the State to put the decedent under 
bonds to keep the peace. Has it come to this, 
then, that a justice of the Supreme Court of the 
United States, when, in obedience to the behests of 
the law, he comes to California to perform his exalted 
judicial duties, must submit to the humiliation, imme- 
diately on his arrival, of stealing away to some justice 
of the peace and instituting proceedings to bind over 
to keep the peace, violent and dangerous litigants, 
who have threatened his life,'* But what security to 
Mr. Field would a bond of $5,000 afford against reso- 
lute, violent and desperate parties, for whom the pen- 
alties for murder have no deterring power.'* The 
United States marshal, the United States attorney 
for the district of California, the attorney-general of 
the United States at Washington, and the mass of 
the people, of California, thought that the exigencies 
of the occasion required something more, and the 
result fully justified their view of the matter. 

"Although no adequate means of protection were 
afforded by the State on his late official journey, and 
Mr. Justice Field would, in all probability, not now be 
among the living, had not the petitioner, by the wise 
forethought of the attorney-general, been detailed to 
protect his life, yet these facts do not afford any rea- 
son for taking him out of the custody of the State, 
unless in committing the homicide he was engaged in 
the performance of 'an act done . . . in pursu- 
ance of a law of the United States,' and the killing 



. PUBLIC SENTIMENT. 509 

was justifiable. These facts alone would not oust the 
jurisdiction of the State, if it be exclusive. But since 
the possible remedy mentioned under the State law- 
was alluded to by counsel as ample, we refer to it as 
illustrating the necessity for a speedy amendment of 
the laws of the United States, if they are now so de- 
fective as to afford no protection to the United States 
judges in the performance of their high functions. 

"It seems apparent to us, if he is not now so pro- 
tected, that the distinguished justice allotted to the 
ninth circuit, and also his associates, should have 
thrown around them the protecting aegis of the laws 
of that government, which he has so long faithfully, 
laboriously, ably, and efficiently served. 

"After mature consideration we have reached the 
conclusion that the homicide in question was com- 
mitted by petitioner while acting in the discharge of a 
duty imposed upon him by the Constitution and laws 
of the United States, within the meaning of the pro- 
visions of section ^53 of the revised statutes. 

"It only remains to inquire, secondly, was the 
homicide necessary, or was it reasonably apparent to 
the mind of the petitioner, at the time and under the 
circumstances then existing, that the killing was neces- 
sary, in order to a full and complete discharge of such 
duty? 

"The answer to this proposition is really included 
in the answer to the last, but we desire to make some 
observations bearing especially upon it. 

"The attorney-general and counsel for the State 
declined to discuss the question as to whether the 
homicide was justifiable, because in their view this 



5 TO LIFE OF DAVID S. TERRY. 

is a question solely for the State court, the case, as 
claimed by them, not being within the provisions of 
section 753 of the revised statutes, and, therefore, not 
within the jurisdiction of this court. Holding, as we 
do, that the case falls within these provisions, so far 
as the petitioner was authorized to act, by the Con- 
stitution and laws of the United States, it becomes 
necessary to determine whether the homicide was jus- 
tifiable. For if it was malicious, wanton, or reckless, 
without any reasonably apparent necessity, in order to 
fully and properly perform his duty of protecting Justice 
Field, then it was an act performed beyond and out- 
side his duty, and he is amenable to the State courts. 

•'The facts set forth in the petition, and in the trav- 
erse to the return of the sheriff, are fully proved by 
the testimony, and whether we determine the case upon 
demurrer to the traverse, or upon the whole case as 
presented in the record and evidence, the result must 
be the same. 

"Were the question of justification to be deter- 
mined by the law of the State of California or in the 
State court, there could be no ground for doubt. 
Says the penal code: * Homicide is also justifiable 
when committed by any person when resisting any 
attempt to murder any person . . . or to do 
some great bodily injury upon any person.' Section 
197, penal code. But we shall consider the question 
without reference to the statute of California. 

"It is unnecessary to repeat the facts in full. 

"When the deceased left his seat, some thirty feet 
distant, walked stealthily down the passage in the 
rear of Justice Fjeld, and dealt the unsuspecting jurist 



t>UBI.lC SENTIMENT. ' 5II 

two preliminary blows, doubtless by way of reminding 
him that the time for vengeance had at last come, 
Justice Field was already at the traditional 'wall' of 
the law. He was sitting quietly at a table, back to the 
assailant, eating his breakfast, the side opposite being 
occupied by ( ther passengers, some of whom were 
wom.en, similarly engaged. When in a dazed con- 
dition he finally awoke to the reality of the situation, 
and saw the giant form of the deceased with arm 
drawn back for a final mortal blow, there was no time to 
get under or over the table, had the law under any cir- 
cumstances absurdly required such a performance for 
his justification. Neagle could not see a 'wall' to 
justify his acts without abandoning his charge to cer- 
tain death. When, therefore, he sprang to his feet and 
cried, 'Stop! I am an officer!' and saw the powerful 
arm of the deceased drawn back for the final deadly 
stroke, instantly change its direction to his left breast, 
apparently seeking his favorite weapon, the knife, and 
at the same time heard the suppressed, disappointed 
growl of recognition of the man who, with the aid of 
half a dozen others, had finally succeeded in disarming 
him of his knife at the court room a year before, the 
supreme moment had come — or, at least, with abundant 
reason, he thought so, and fired the fatal shot. The 
testimony all concurs in showing this to be the state 
of facts, and the almost universal concensus of public 
opinion of the United States, as mirrored in the press, 
resting upon reports no more favorable to petitioner 
than the evidence taken in this case, justifies the act. 
On that occasion, a second or two seconds signified at 
least two valuable lives, and a reasonable degree of 



512 ' LIFE OF DAVID S. TERRY. 

prudence would justify a shot one or two seconds too 
soon rather than a fraction of a second too late. 

*'We have seen some adverse criticism upon the 
action of petitioner attributed to quarters ordinarily 
entitled to great consideration and nspect. But it is 
not for scholarly gentlemen of humane and peaceful 
instincts — gentlemen who, in all probability, never in 
their lives saw a desperate man of herculean pro- 
portions and strength, in murderous action — it is not 
for them, sitting securely in their libraries three thou- 
sand miles away, looking backward over the scene, to 
determine the exact point of time when a man in 
Neagle's situation should fire at his assailant in order 
to be justified by the law. It is not for them to say 
that the proper time has not yet come. To such, in 
all probability, the proper time would never come. 
Neagle, on the scene of action, facing the party 
making a murderous assault, knowing by personal 
experience his physical powers and his desperate char- 
acter, and, by general reputation, his lifelong habit of 
carrying arms, his readiness to use them, and his 
angry murderous threats, and seeing his demoniac 
looks, his stealthy assault upon Justice Field from 
behind, and remembering the sacred trust committed 
to his charge — Neagle, in these trying circumstances, 
was the party to determine when the supreme moment 
for action had come, and if he honestly acted with 
reasonable judgment and discretion the law justifies 
him, even if he erred. But who will have the courage 
to stand up in the presence of the facts^developed by 
the testimony in this case and say he fired the smallest 
fraction of a second too soon? 



PUBLIC SENTIMENT. 513 

"In our judgment, he acted, under the trying con- 
ditions surrounding him, in good faith and with con- 
summate courage, judgment and discretion. The homi- 
cide was, in our opinion, clearly justifiable in law, and, 
in the forum of sound, practical common sense, 
commendable, 

"Let the petitioner be discharged. 

"September i6, 1889. 

" Sawyer, Circuit Judge. 
"Sabin, District fudge." 



CHAPTER LI. 

Reflections on N eagle's Discharge — Adverse 
Criticism on the Character of Terry — How 
He Was Estimated by Eastern People. 

The remarkable document which is presented in 
full in the preceding chapter, so elaborate in detail, 
so voluminous in extentand research, and so unique in 
design, suggests the estimate placed upon Justice 
Field by David S. Terry, that he could present the 
most plausible reasons for a bad decision of any man 
that ever occupied the bench. The narration of facts 
is of that peculiar type which creates a measure of 
doubt in the mind of the reader when compared with 
the evidence offered by so many others not directly 
interested in the case. There were no objections 
offered to the discharge of Deputy N eagle, but the 
manner in which it was done was the subject of severe 
and just criticism. It was one of those peculiar cases 
where a murder had been committed and there was no 
murderer on the surface. The skirts of the armor- 
bearer of Justice Field would have been more clean 
and much whiter had he insisted upon a trial and been 
declared not guilty than to be set at liberty by the 
court against which the offense had been committed 
without a trial, as he would most certainly have been 
acquitted. 1 1 was the revelations which must necessarily 
follow a court of inquiry which suggested the peculiar 
method that was resorted to. 



PUBLIC SENTIMENT. 515 

The summary removal of a "border ruffian " of the 
"fire-eating" type was termed an act of "consummate 
skill," and that "border ruffian" one of the higher 
order; one of the most eminent, dignified and grand. 
He almost dignified the profession to which he be- 
longed as gauged by his best enemies. One of them, 
a brother Democrat of the "other school," who edited 
the Placerville Observer, feeling secure over the new- 
made sod that covered the body of the "criminal," 
paid his farewell respects in the following well-chosen 
words, and with a spirit that invites the charity of 
men and the pity of angels. He drops into camp- 
fire reminiscences with prodigality and blurs the truth 
with a relish that is truly refreshing. As ordinary 
newspapers seldom survive one moon, it is fitting that 
this production be preserved to enlighten future gener- 
ations, and teach them that the most elegant language 
can be employed by a prejudiced mind to evolve the 
most superb ignorance and falsehood in order to unite 
with the cowardly chorus that did homage to the power 
of wealth and corruption: — 

"The timely official shot which killed David S. 
Terry, arrested and avenged a brutal assault, charac- 
teristic of the assailant. It closed a criminal career, 
distinguished by shameless infamies. The cold-blooded 
blackguard belonged to a class of treacherous and 
brutal ruffians, who, unwept and unregretted, are 
passing rapidly away. His fate is bewailed by none 
but his boon companions, and a few surviving con- 
federates in successive conspiracies against society and 
government. Hence the universal verdict of decent 
people and of the press, which reflects their senti- 



5l6 LIFE OF DAVID S. TERRY. 

ments, will be, and is, that his sudden and inglorious 
death was caused by a drastic dose of his own medicine. 

"The doom he invited and deserved was only too 
long deferred. Dust to dust, earth to earth, and peace 
to his ashes. Let the other darkness into which he 
has passed cover venal sins and the average of human 
vices. Let 'time's half brother* condone such faults 
and frailties as are inherent in human nature. Let the 
sepulchral voice and hollow laughter which were the 
echoes of a heart dead to all the better sentiments and 
aspirations of humanity be heard no more forever. 
But while charity with averted face and mental reser- 
vations consigns him to an ignoble grave, it is the 
office of that even-handed justice, to which he has 
forfeited his criminal life, to make it a warning 
example for all time to come. 

"But why expose the shameless audacity of the 
blackguard who sought, with favorable opportunities, 
to make his crimes conspicuous? From his first war 
whoop in border fray to the last crowning infamy of 
his diabolical and disreputable life, he was a predatory 
soldier of fortune, intent upon the bad eminence he at- 
tained. With the treachery of an Apache Indian, he 
had the courage whicli comes from the 'trick of the 
weapon' and superior physical strength. In the cold- 
blooded and vindictive conspiracy to hunt down and 
kill the gallant Broderick, he sported a 'shield bla- 
zoned with the name of chivalry to cover the crime of 
murder.' The sectional and sinister motive of the 
hair-triggered conspiracy to kill the organizing and 
representative leader of the Douglas Democracy is 
well known. 'I die,' he said, 'because I was opposed 



PUBLIC SENTIMENT. 517 

to a corrupt administration and the extension of 
slavery.' But the dead hero was mightier than the 
Hving assassin. From Lone Mountain to the aveng- 
ing heavens the moral and fighting forces of the uni- 
verse were proclaiming the coming triumph of the 
good cause for which he died. 

"With the hanging mark of Cain upon him, the 
apostate judge, who never felt nor feigned a moral 
obligation or loyal sentiment, withdrew from subor- 
dinate conspiracies against Northern men and insti- 
tutions in California, to join a more gigantic con- 
federacy against the nation. Having shared the crimes 
and husks of the rebellion and tarried for the benefit 
of robust health two years in Mexico, he returned to 
this State, in whose penitentiary he should have spent 
the seven years of his absence. He came back a sad- 
der and sourer, but not a better man. 

"The heart that broke when the Rebellion went 
down before the eagles of the republic, was still in 
arms against the people and their government. The 
rancorous and remorseless rebel, embittered by defeat 
and torn by the vulture of disappointment, was still a 
false and faithless unbeliever in the force that crushed 
him. The red-handed conspirator against the peace 
and dignity of the State, when remanded for past 
offenses to social and political ostracism, if less hope- 
ful and confident, was more morose and malignant. 
By his prurient marriage of an adventuress, better 
than himself, he had gained a loss of antenuptial 
friends and fortune. And when the coveted millions 
of her departed paramours went glimmering from 
sight, her last suitor and first husband had nothing to 

i4 



5l8 LIFE OF DAVID S. TERRY. 

show for love or luck but the charming Sarah Althea 
herself. Hence the concerted cry of disappointed 
rage with which all the suits against Sharon, for love 
or money, were consolidated in one deadly, double- 
barreled, breech-loading, self-cocking case of aggra- 
vated insult, slander and violence against courts and 
judges. With just this case and no other provocation 
than his own nastiness, the brutal and shameless 
blackguard who assaulted Judge Field, crossed the 
inviolable circle which conserves the independence and 
security of judges and courts, and messengers of death 
exchanged horses to tell how a brave officer avenged 
the wrong. 

"The riddle and irony of fate never looked so much 
like the compensations of divine justice. While the 
deathless name and memory of David C. Broderick 
are spell words of honor and slogans of honor, those 
of the notorious Terry are synonyms of shame and 
silent contempt. Of all the courts and civic societies 
that vied with each other in respectful homage to the 
dead lion, not one has condescended to notice the dismal 
death and burial of his slayer. It is not now the estate 
of Sharon that is to be despoiled and wasted, but the 
less tempting one of Terry is to be the dry bone of 
contention. The disloyal and diabolical conspiracies 
for pelf and power, in which the mercenary and mur- 
derous Terry warred upon individual life, social order 
and good government, are blackening in the winds 
that winnow fragrance on the monumental shrine of 
Broderick, and pay loving homage to the ' flag of the 
free and the home of the brave.' And now that the 
bully and blackguard who courted his fate has expiated 



PUBLIC SENTIMENT. 519 

his criminal aspersions and assaults upon learned, dig- 
nified and venerable judges, their untarnished lives and 
reputations are in the safe-keeping of the States and 
nation they have served so long and well — an im- 
perishable heritage of virtue, justice and honor," 

The Chicago Mail, a representative newspaper of 
the great West, with commendable care and intelli- 
gence, presented the following to its readers at the 
time of Terry's death. With a few exceptions, it is a 
fair presentation of the facts, briefly told: — 

"When the story of the life of Sarah Althea Hill- 
Sharon-Terry is written — if it ever should be — it will 
be the history of a trouble-maker. She began by 
leading Senator Sharon a chase which ended in his 
demise. She had worried the weak millionaire for 
years before death — largely hastened by her attacks 
on him in the courts and in the press — ended his part 
in the fight. But the woman — one of those fierce 
natures that are frequently found in the southern 
countries of Europe, but rarely in America — continued 
the struggle with the dead man's heirs. Into her net 
she drew Judge Terry, her counsel, and they were 
married. He was just the ally she wanted — a typical 
Western fire-eater, as hot-blooded as herself, as venge- 
ful, as unrelenting in his hatred, and, withal, a duelist 
who had killed his man. 

"With this man under her thumb Sarah Althea 
fought unceasingly for Sharon's wealth, and when a 
decision was rendered against her became so abusive 
that Judge Field was compelled to order her removal 
from the court room. This precipitated a disgraceful 
row, in which Terry drew a murderous knife and at- 



520 LIFE OF DAVID S. TERRY. 

tempted to use it on the court's officers. For this he 
was sent to jail for six months, during which time he 
threatened dire vengeance on Judge Field should he 
ever encounter him. Yesterday this encounter oc- 
curred. Terry entered the dining room of a railway 
eating station with his wife, and the pair saw Judge 
Field, who was seated at another table in company 
with a deputy marshal, detailed by the department of 
justice at Washington to protect him. The woman 
immediately left the dining room and went to the car, 
where she got her satchel, containing a revolver, but 
was stopped on her return. Doubtless Terry was 
waiting for this weapon, and when it did not come, he 
surmised the cause and started for it himself But his 
hatred was so strong that he stopped in passing Judge 
Field and struck him from behind. He was about to 
strike again when the deputy marshal shot him dead." 

As a newspaper that has some character outside of 
politics, the New York Nation may be considered on 
a high plane in the advancing column of the "higher 
civilization," and as a representative of Eastern thought 
and sentiment it is worth quoting in this connection: — 

"Terry was really a very interesting specimen of a 
class which may now be considered almost extinct, 
even at the South, where he originated and got his 
notions of honor and morality — a class which we have 
heard admirably described by a witty member of our 
bar as a 'regular ante-bellum blackguard.' He was, 
as most of them were, more than a blackguard. He 
had a force of character, great courage, and doubtless 
some knowledge of the law, for he was a Chief Justice 
in the early days of California, but a person as much 



PUBLIC SENTIMENT. 52 I 

out of place in our modern industrial and busy com- 
munities as a tiger in a barnyard. The whole tribe 
owed their existence to the inordinate value attached 
in the South, in the slavery days, to personal courage 
as one of the social virtues, and which they accord- 
ingly soon learned to use as a cover for every variety 
of social defect — drunkenness, quarrelsomeness, idle- 
ness and general business untrustworthiness. They 
had, in fact, to be quarrelsome in order to bring their pe- 
culiar virtue into play and make it tell on their social 
standing; but it was a virtue which, of course, has com- 
paratively small value in any community in which the 
administration of justice is efficient and the police 
reasonably vigilant. 

"Terry's death reminds us forcibly of the changes 
all parts of the country — New York, as well as the 
Southern States and the Pacific Coast-^have under- 
gone since he rose into fame by killing Broderick. 
Broderick, though a man of good character and 
considerable ability, was simply a ward politician and 
saloon-keeper and the foreman of a fire company when 
he emigrated from New York to California, and yet 
his death convulsed the public in New York as a great 
political calamity. But the community which was 
convulsed was not shocked by seeing one of the most 
notorious ruffians of the day — the leader of more than 
one riot — Isaiah Rynders, occupying the place of 
United States marshal, and gave Bill Pool, a political 
pugilist killed in a bar-room fight, one of the most im- 
posing funerals ever seen in the city. 

"Terry was, in fact, in his beginnings a man of his 
time, but must have felt himself ever since the war 



522 LIFE OF DAVID S. TERRY. 

the member of a rapidly disappearing variety of the 
Homo Americanus . In the South his congeners are 
nearly all gone. Almost every month carries one of 
them off, either through wounds received in "battle," or 
through the action of alcohol on his mucous mem- 
brane. What their ideas of post-mortem existence 
were it would be interesting to know, but we have 
never heard that any of them published his views on a 
future life. They were seldom men of a speculative 
or meditative turn of mind, and probably occupied 
themselves with no subject of a metaphysical charac- 
ter, except the nature and requirements of 'honor.* 
But certainly heaven as a place of peace and rest, 
with no bars, no 'difficulties,' and no 'code,' and no 
'gentlemen of the old school,' cannot have had much 
attraction for them. 

"The killing of Terry has called forth some, but 
not much, discussion of the law of the matter, owing 
to the fact that it was not N eagle that Terry attacked, 
but another man, and that therefore N eagle did not 
act in self-defense. But the justifiability of Neagle's 
act is a question for a jury, and a jury will take all the 
circumstances into consideration, including Terry's 
reputation and his threats. The question jurymen will 
inevitably ask themselves is whether a Federal police 
officer was bound to stand by and make perfectly sure 
that Terry was going to murder Judge Field before 
drawing a weapon against him; and also whether, after 
becoming satisfied in his own mind that Terry did 
mean to commit a murder, he was bound to make an 
attempt to disarm him by means of a personal tussle 
before using his pistol." 



CHAPTER LII. 

Conclusion. 

The story is told. There could probably be much 
added if the man had been more generous with his 
personal history, but he was selfish in that respect. He 
was one of the few men who have been endowed with 
great abilities that despised adulation. He did not be- 
lieve in praise for the performance of duty. It may have 
been sufficiently uncommon for men to do their duty 
under any and all circumstances to be entitled to com- 
mendation and praise, but that was not his idea of 
manhood. As David S. Terry emerged from youth 
to manhood he carried with him a high principle of 
honor and dignity. He was subject to the most 
dangerous influences in the passage, and, whether 
natural or acquired, he was domineering and rough 
in his contact with the world. He was in many ways 
generous, but not in charity toward those who were 
weak in either intellect or courage. He had no 
patience with the man who could compromise his honor 
in any manner for any purpose. He was a stern and 
relentless enemy of every phase of deceit. His ex- 
perience in the rough walks of life, when coming in 
contact with those who were pushing to the front 
armed with hypocrisy, was sensational. There was 
an element in his nature which antagonized all the 
arts that were common to the ordinary place-seeker. 

(523) 



524 LIFE OF DAVID S. TERRY. 

His convictions were strong, and as he was wedded to 
the principles of slavery, he took the most radical view 
of that subject. He was not in a natural element 
after the Civil War, and he yielded reluctantly to what 
he denominated the power of force in national affairs. 

He was one of the men of brain and force whose 
names are inseparable from the early history of Cali- 
fornia. He was an able, implacable, courageous, vin- 
dictive and desperate man; but he was one of the best 
constitutional lawyers in the State. Those who lived 
in the times preceding the Civil War, when border 
troubles in Kansas and Missouri, were quite common, 
can appreciate the extreme virulence with which the 
partisans were ranged on either side, and which finally, 
culminated in the Civil War. It was such a temper 
that led to the celebrated duel and marked an era in 
California's history. The friendship that had existed 
in former years was forgotten in that hour. 

His great ability and indomitable courage were suf- 
ficient to insure his professional success, however dark 
the horizon of his political fortunes may have become. 
At the ripe age of sixty-six his mental faculties were 
not dimmed nor his physical vigor impaired. He 
stood, as for a quarter of a century longer he might 
have stood, at the head of his profession in the great c 
valley of the San Joaquin, and the peer of his as- 
sociates at the California bar. Destruction came upon 
the ex-chief justice in the form of the heroine of the 
great Sharonscandal. As one editor has said: "Friends 
of the dead jurist — and he had many and strong ones 
— would resent, perhaps, even an allusion to his ad- 
mitting failings; but they will not have the hardihood 



PUBLIC SENTIMENT. 525 

to deny that his marriage with Miss Hill was an insult 
to them and to the memory of the mother of his chil- 
dren, and a menace to society. That marriage com- 
passed the judge's ruin." 

The Sharon case is as much a mystery to-day as it 
was the day it was first instituted. It was never de- 
cided intelligently, and never can be. The documents 
are voluminous, but the most impressive and convincing 
one is Judge Terry's arraignment of the Supreme 
Court in his argument on motion for a rehearing. His 
death ended it. It is only just to his memory to say 
that he believed in the righteousness of his client's 
cause, but his marriage with her doomed him to in- 
evitable ruin. In view of his reputation as a desperate 
man and his reported threats the servants of the 
government were perfectly safe in killing him when 
wreaking vengeance on Justice Field. It was the 
audacity of the deed in slapping Field's face, and not 
the fact that he was shot down without warninor that 

o' 

challenged the attention of the world. There was 
nothing out of the ordinary in the killing, but the 
exhibition of contempt displayed in the attack upon 
Field was the act that created consternation and 
surprise. 

After the release of N eagle on habeas corpus he was 
congratulated by the Federal appendages. As soon 
as Judge Sawyer had concluded the reading of the de- 
cision, the people present repaired to the office of the 
United States marshal, and from there to the judge's 
chambers, where he was presented with a massive gold 
watch and chain by Justice Field, which was accom- 
panied by a few remarks. This outward and public 



526 LIFE OF DAVID S. TERRY. 

show of reward had inscribed upon it the words: 
"Stephen). Field to David Neagle, as a token of 
appreciation of his courage and fidelity to duty under 
circumstances of great peril at Lathrop, Cal./on the 
fourteenth day of August, 1889." 

With the foregoing biography and history as the 
result of months of hard and honest labor, having in 
view solely and singularly a desire to present nothing 
but the facts, with a due regard to the virtues and 
vices of the dead and justice to the living, the writer 
will ask the charity of critics in reviewing it as a liter- 
ary production, but invites special attention and re- 
spectful consideration as to the facts set forth. 



W 



